They are normatively different than standard goods, and courts don't yet appreciate that difference. More on that in Source & Solidarity (which I will now have to revise following this decision)!
papers.ssrn.com/sol3/papers....

The court regarded TJU's as a typical trademark producer, interested in selling tote bags for profit. But tote bags, buttons, mugs, etc. are much more like political advertisements for labor unions -- they encourage public support for the labor cause; they publicize its efforts.

(3) Ninth Circuit applied the standard likelihood of confusion test in a standard way, finding there is a likelihood of consumer confusion as to the source or sponsorship of the tote bags. That's not surprising at all, but that doesn't mean it's right in this context.

(2) Ninth Circuit is also correct that the District Court shouldn't have decided TJ's dilution claim on nominative fair use because TJU's never raised it. TJU risks waiver, and nominative fair use was its strongest argument.

Also, on a MTD there aren't enough facts in the record to establish whether this trademark dispute "involv[es] or grow[s] out of a labor dispute."

First thoughts:
(1) Ninth Circuit is right that District Court misapplied the Norris-LaGuardia Act here. It doesn't deprive courts of jurisdiction full-stop, just the ability to award an injunction. A trademark case can be resolved on the merits without the prospect of an injunction.

SSRN link: papers.ssrn.com/sol3/papers....

In the paper, I surface the distinct historical roots of trademark law's recognition and protection of labor union marks. I rely on this history to suggest how courts might re-frame current trademark law standards to fit the context of union-trademark disputes.

Thank you, Jeanne!

I am also grateful to @laheymann.bsky.social , @marklemley.bsky.social , Chris Buccafusco, and @rtushnet.bsky.social for their thoughtful and insightful comments on an earlier draft.

I want to thank my fantastic research assistants, Julie Papaj and Christa Reed, for their help getting the article ready for submission.

And here's the abstract:

A draft is available on SSRN for interested readers: papers.ssrn.com/sol3/papers....