On November 21, 2022 the U.S. Supreme Court agreed—after passing on the issue once before—to hear Jack Daniel’s (JDPI) challenge to the Ninth Circuit’s ruling in VIP Prods. LLC v. Jack Daniel’s Props, where the Ninth Circuit affirmed without opinion the district court’s grant of summary judgment to VIP and the dismissal of JDPI’s trademark infringement claim, on the grounds that JDPI could not satisfy either prong of the Rogers test. The Rogers test balances free expression under the First Amendment against the trademark protections of the Lanham Act. The Supreme Court granted certiorari on the questions of whether parody uses of another’s mark receive First Amendment protection from liability under the Lanham Act and whether parody is exempt from claims of dilution by tarnishment under 15 U.S.C. § 1125(c)(3)(C). The decision could clarify the balance between trademark and the First Amendment, an issue that has long-confounded practitioners.
Continue Reading More Bark or Bite? U.S. Supreme Court to Decide Whether the First Amendment Has the Teeth to Protect Whiskey Bottle Shaped Dog Toy Maker from Jack Daniel’s Lanham Act Claims