In the article “SCOTUS Asked to Balance First Amendment and Confusion in Jack Daniel’s Dispute,” published by The National Law Journal, co-chair of Knobbe Martens’ trademark practice group Jeff Van Hoosear discusses oral arguments from the Jack Daniel’s v. VIP Products U.S. Supreme Court case.
In the case, Jack Daniel’s sued a dog toy company that manufactured a plastic dog toy resembling Jack Daniel’s iconic bottle, alleging trademark infringement. The Court addressed how trademark protection laws apply to parody, discussing whether parodic use of another’s trademark as one’s own on a commercial product was subject to the Lanham Act’s likelihood-of-confusion analysis, or instead entitled to First Amendment protection as an expressive work.
During oral arguments, some of the justices focused on the Rogers test, which “comes into play when the Lanham Act comes in conflict with the First Amendment.” Van Hoosear commented, “There was a lot of discussion on consumers and whether or not they would be confused in this instance and not as much emphasis on brand protection as I would have liked.” Furthermore, Van Hoosear called the Ninth Circuit’s use of the Rogers test the “proverbial inch taken for a mile,” adding, “I don’t think that calling a product a parody should be a ‘get of out of jail free’ card.”
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