- According to Inner City Press, the jury just asked a second question to Judge Rakoff in the trademark lawsuit brought by Hermes against artist Mason Rothschild: What to do “[i] they are unanimous on 1st three counts but can’t decide on 1st Amendment?”
- According to Inner City Press, Judge Rakoff said “I’ll tell them, then you keep deliberating.” He also apparently told Rothschild’s counsel that they may be “over-interpreting the secret deliberations of the jury.”
- WOW! Gotta love these questions from the jury!
- It sounds like the jury is unanimous that Hermes has proven at least one of its first three counts: (1) TM infringement, (2) false designation of origin, and (3) dilution. (If they were unanimous in finding all three counts in favor of Rothschild, there would be no need to deliberate on the Rogers test/First Amendment issue, so the case would be over. Hermes needs to have proven at least one of these counts for the analysis of the Rogers test to be in play.) But the jury cannot reach a decision (yet) on the First Amendment defense or Rogers test.
- In my experience, when the judge tells a jury to keep deliberating, that often breaks the logjam and the jury reaches a verdict that day (especially when the stakes are not as high a serious criminal case).
