How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

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Future Proof Brands, LLC v. Molson Coors Beverage Co.

Docket: 20-50323

Opinion Date: December 3, 2020

Judge: Jerry Edwin Smith

Areas of Law: Intellectual Property, Trademark

Future Proof filed suit against Coors for trademark infringement, claiming that consumers would confuse Coors' hard seltzer beverage "Vizzy" with Future Proof's hard seltzer beverage "Brizzy." The Fifth Circuit affirmed the district court's denial of Future Proof's motion for a preliminary injunction, holding that the district court did not abuse its discretion in determining that Future Proof cannot determine a likelihood of success on the merits of its claims. In this case, the district court considered the digits of confusion and concluded that three digits supported the injunction and one weighed "marginally in favor of granting the injunction . . . ." But the district court correctly concluded that the other four factors did not support the injunction. The district court also notably concluded correctly that the two digits that have special importance, namely the sixth—which "may alone be sufficient to justify an inference that there is a likelihood of confusion,"—and the seventh—which constitutes the "best evidence of a likelihood of confusion,"—did not support the injunction.