We have some fantastic news about the next phase of the ugg case – we will be filing an appeal to the US Supreme Court.The Morrison Government and Attorney General Michaelia Cash have come to the party with a grant of legal financial assistance of USD $150,000 under the Special Circumstances Scheme in order to assist us in retaining a specialist US Supreme Court advocate to run our case. It seems that the Government thinks we have a fair shot of winning on the merits in the US Supreme Court. Thank you very much to the Morrison Government and the AG for your financial support.
As a result of that financial support, we have been able to retain Seth Waxman of WilmerHale to run our US Supreme Court Appeal. Seth has been the Chair of WilmerHale Appellate and Supreme Court Practice for 20 years and is considered to be among the premier US Supreme Court appellate advocates. He is also a former Solicitor General of the United States, having served with distinction for President Clinton from 1997 to 2001.
Our US legal team is now working on our petition to the US Supreme Court which is due on 4 October 2021.
We are confident of being able to present a strong case to the US Supreme Court. As stated by Seth in his letter to the Australian AG - “I am confident that if the Supreme Court takes the case, we will be able to make strong arguments on the merits.”
Our key argument is that the US doctrine of foreign equivalents must apply to both English and non-English generic words. How can it be illegal for US corporations to trademark a generic word from a non-English speaking country (say saké from Japan) in order to obtain a US product monopoly but legal to trademark a generic word from an English-speaking country (namely ugg) in order to obtain a US product monopoly.
The only thing we need now to increase our chances of the US Supreme Court agreeing to hear our case is further support from the Australian Government in terms of filing an amicus brief in support of our petition. As stated by Seth in his letter to the AG: “A friend of the court (amicus curiae) brief from the Australian government supporting U.S. Supreme Court review is critical to ensure these important issues receive attention at the highest levels of the U.S. legal system and the rights of the Australian nationals in this case are vindicated.”
We are waiting to hear back from the Government on their decision whether to file an amicus brief.