Notice & Comment

DC Circuit Review – Reviewed: Happy Halloween

I hope everyone had a happy Halloween weekend. My husband and I took our children trick-or-treating not far from the E. Barrett Prettyman Courthouse, where we enjoyed perfect fall weather in a festive residential neighborhood of D.C. At my children’s request, I was dressed as Mayor Goodway, the mayor of Adventure Bay in the animated series, Paw Patrol. She is well-meaning but often exercises poor judgment, and the Paw Patrol must intervene to redeem her misadventures almost as often as they must act to thwart the schemes of Mayor Humdinger, her devious counterpart in Foggy Bottom. Perhaps there is a lesson in administrative law there.

The D.C. Circuit issued no opinions last week,* so I am taking a page out of Aaron’s book to review holiday-themed D.C. Circuit opinions.

Like any good ghost story, ours begins over a century ago, with a case that touches on two familiar features of Halloween: chocolate and costumes. In Nestle & Anglo-Swiss Condensed Milk Co. v. Walter Baker & Co., Nestle appealed a decision of the Commissioner of Patents sustaining Walter Baker & Co.’s objection to the registration of Nestle’s trademark for “cocoa with milk and chocolate with milk.”  Walter Baker & Co. objected to the proposed trademark on the ground that it was too similar to its own trademark for similar chocolate products. Nestle’s trademark included “a milkmaid in Swiss costume” bearing buckets of milk, while Walter Baker & Co.’s depicted “a waitress in Quaker of [sic] Puritan costume carrying a tray supporting cups”:

Walter Baker & Co. had persuaded the Commissioner of Patents that confusion between the brands arose from purchasers asking for “chocolate with the picture of a girl on it.” Unwilling to extend to Walter Baker & Co. the right “to exclude everyone from using the representation of a woman as a trademark upon similar goods,” and relying primarily on “an ocular inspection of the marks,” the Court reversed. “We are unable to find that anyone of average discernment would be likely . . . to confuse the ‘Quaker lady’ with the ‘Swiss milkmaid.’”  

In Edwards v. District of Columbia, the Court considered a First Amendment challenge to the District’s licensing scheme for for-hire tour guides. The District required applicants for a license to pass an examination “covering the applicant’s knowledge of buildings and points of historical and general interest in the District.” Among the reasons the requirement foundered on tailoring: even guides for “ghost tours” were required to pass the general knowledge exam.

Halloween themes more often appear through metaphor. “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried,” or “a Frankenstein’s monster [that] meanders its well-intentioned way through the legal landscape leaving waste and confusion . . . in its wake,” ghosts and other fiends sometimes haunt the opinions of the D.C. Circuit. In FTC v. Weyerhaueser, for example, the majority and the dissent sparred over the afterlife of a corporate entity allowed to merge into a separate entity: would it become a ghost and haunt the halls of the district court? And in United States ex rel. Tran v. Computer Sciences Corporation, the District Court injected a bit of humor when it took the defendant to task for repeatedly making the same argument: “To the extent that it arises here again, the Court sincerely hopes it has done enough to finally put that dreaded claim to rest. Cf. Zombie Killing, Zombiepedia, (last visited July 2, 2014) (noting that ‘[i]t will rarely take only one swing’ to kill a zombie).”

Litigants are often the target of the Court’s spooky rhetoric. In the case of a plea deal gone bad, Judge Williams analogized the government’s dealing with the conduct of the witches in Macbeth:

For another Halloween-themed Shakespeare quote, see United States v. Lynch (“We must not make a scarecrow of the law, Setting it up to fear the birds of prey . . . .”). Alas, I could find nothing from Edgar Allen Poe, but his namesake (who served as Attorney General of Maryland) did litigate a case in the court that would become the D.C. Circuit.

*The Court held an en banc argument this week in Chambers v. District of Columbia, No. 19-7098. That case presents the question whether and under what circumstances a discriminatory job transfer decision is actionable under Title VII. Since 1999, the D.C. Circuit has required a plaintiff challenging a lateral transfer or denial thereof to show a diminution in pay or benefits or other “objectively tangible harm.” The panel (consisting of Judges Tatel and Ginsburg alone) relied on this precedent to affirm the district court’s grant of summary judgment to the District of Columbia in a per curiam opinion. Judges Tatel and Ginsburg jointly authored a concurrence calling the precedent into question, and the en banc Court answered their call to reconsider it.

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