Tuesday, January 20, 2009

Phillip Morris USA v. King Mountain Tobacco Co. (9th Cir. - Jan. 20, 2009)

Hmmm. Phillip Morris versus King Mountain Tobacco Co. Hard to know which side (if any) to root for, eh?

Ultimately, the case actually comes down to tribal exhaustion principles. And the panel clearly gets it right in holding that tribal exhaustion doesn't apply here. Though Judge Fletcher -- not surprisingly, given his definite interest in the subject matter -- doesn't like a lot of what the majority has to say, in the end, everyone on the panel agrees that the case (at least the vast majority of it) rightly belongs in federal rather than tribal court. I too am on board for that.

I just wanted to add one final point. It's a trademark case. Check out the photographs of the two products on page 725 of the slip opinion. Yes, I'm sure that the mountain on the King Mountain cigarettes depicts a sacred mountain (Mt. Adams, or "Pahto" to the Yakama Nation). But I must say that when King Mountain asserts "that any resemblance to Philip Morris’s packaging [for Malboro's] is inadvertent and incidental," my reaction is: "You've got to be freaking kidding me, right?" I think that any reasonable observer would be crystal clear as to what's going on here. To put it bluntly: incindental my ass.

Cigarettes. Indian tribes. Trademarks. You gotta love the combination.