Cockfighting in Puerto Rico and trade-costume protections for snack foodstuff

PETITONS OF THE 7 days By Mitchell Jagodinski on Jul 9, 2021 at 4:20 pm


A new petition asks the Supreme Court docket to weigh in on irrespective of whether Congress can ban cockfighting in Puerto Rico. (amnat30 by way of Shutterstock)

This 7 days we highlight cert petitions that talk to the Supreme Court docket to look at, among the other items, the ability of Congress to criminalize cockfighting below the commerce clause and the suitable definition of “functionality” as utilized to trade dress.

Puerto Rico is a United States territory, with its possess structure. And like a point out, it is an autonomous political entity sovereign over issues not protected by the United States Constitution. For the previous 400 a long time, cockfighting has been practiced on the island and is however today proclaimed by Puerto Rican regulation to be a “cultural correct of all Puerto Ricans.” Even though illegal under federal law since 1976, Congress continued to permit cockfighting wherever permissible beneath neighborhood law till 2018, when Congress passed Area 12616 of the Agriculture Improvement Act. Area 12616 eradicated the regional regulation exemption of the Animal Welfare Act and properly criminalized cockfighting in Puerto Rico. In Ortiz-Diaz v. United States, a variety of people and organizations concerned in the Puerto Rican cockfighting industry challenge the authority of Congress to govern what they contemplate a local tailor made. They insist that cockfighting is the island’s “national activity,” pointing to around 70 “cockpits” situated all over Puerto Rico, which host tens of countless numbers of cockfights just about every yr, supporting an approximated 11,000 careers and making $65 million in yearly earnings.

The district court docket and the U.S. Courtroom of Appeals for the 1st Circuit rejected the challengers’ lawsuit, keeping that Area 12616 was a appropriate use of Congress’ authority to control commerce underneath the commerce clause for the reason that of the significant effect cockfighting has on interstate commerce. The challengers declare that these kinds of a holding raises federalism issues, insisting that cockfighting is an inherently neighborhood challenge that Puerto Ricans have the suitable to govern individual from the federal authorities. They also argue that the regulation of animal sports has normally been still left to the states, citing illustrations this kind of as rodeos, livestock exhibits, horse racing and searching. Furthermore, they argue that cockfighting has no outcome on interstate commerce and question the justices to grant cert to implement the “outer limits” of the commerce clause and restore Puerto Rican sovereignty more than what it considers a genuine activity on the island.

Ezaki Glico Co. v. Lotte Intercontinental The us Corp. provides the justices with an intellectual-property query involving “trade dress” for the well-known snack foods Pocky, a slender, rod-shaped biscuit with a chocolate or product coating. Trade costume refers to a product’s exclusive design or condition, this kind of as the tear-fall form of a Hershey’s Kiss. To be entitled to trademark protections, 1 necessity is that the one of a kind trade-dress attribute can’t be “functional.”

Pocky and its competitor, as depicted in the cert petition.

Ezaki Glico Co., the company of Pocky, sued Lotte Worldwide The us Corp., a rival snack-meals firm, after Lotte started marketing a similar chocolate-coated biscuit snack. Glico argued that Lotte committed trade-gown infringement, but the district court and the U.S. Court docket of Appeals for the 3rd Circuit ruled that the design and style of Pocky is purposeful. In its cert petition, Glico argues that the 3rd Circuit utilized an inappropriate definition of features – departing from regular trademark doctrine and the bulk of other circuits – when it dominated that Pocky’s layout is “useful” for becoming eaten and shared. Glico argues that this definition lowers the threshold for performance and that option layouts serving the similar reason must build a issue of reality on performance. The acknowledged checks for performance, Glico proceeds, classify a product’s feature as functional only if it is crucial to the use or objective, if it has an effect on the price or high-quality, or if its exceptional use puts opponents at a major downside. Glico argues that a acquiring of features based on usefulness and “nothing more” threatens the uniformity of trade costume across the county and asks the courtroom to announce the proper examination for features.

These and other petitions of the week are underneath:

Ortiz-Diaz v. United States
Challenge: No matter whether Congress has energy beneath the commerce clause to criminalize cockfighting on the island of Puerto Rico.

Morales-Vázquez v. QBE Seguros
Concern: Whether or not the conventional doctrine of uberrimae fidei (“utmost very good faith”) proceeds to utilize in its rigorous type (as held by the U.S. Courtroom of Appeals for the 1st Circuit in the choice underneath and also by the U.S. Courts of Appeals for the 3rd, 9th, and 11th Circuits), or is the doctrine restricted to conditions in which the insurance company relied on a miscalculation or omission when issuing the coverage (as held by the U.S. Courts of Appeals for the 2nd and 8th Circuits), or is the classic doctrine no longer part of federal maritime law (as held by the U.S. Courtroom of Appeals for the 5th Circuit), or really should the doctrine be modified to restrict an insurer’s ability to steer clear of the coverage (which would restore uniformity with the law in England).

Ezaki Glico Co. v. Lotte Intercontinental America Corp.
Difficulties: (1) No matter whether trade costume is “functional” if it is “essential to the use or purpose of the article” or “affects the cost or good quality of the short article,” as the Supreme Courtroom and nine circuit courts have held, or if it is basically “useful” and “nothing more,” as the U.S. Courtroom of Appeals for the 3rd Circuit held underneath and (2) no matter whether the presence of different designs serving the same use or purpose produces a question of simple fact with respect to functionality, wherever the product’s layout does not impact cost or good quality and is not claimed in a utility patent.

Lewis v. Pension Gain Warranty Company
Challenge: Irrespective of whether the U.S. Courtroom of Appeals for the D.C. Circuit improperly extended Chevron deference to Pension Gain Assure Corporation’s construction of ambiguous statutory provisions in casual, non-binding adjudications undertaken not in the agency’s congressionally assigned function as insurance provider (or in any other regulatory potential) but rather as a program trustee and fiduciary.