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Like any issue in the public eye, Americans have a First Amendment right to parody, comment on, and criticize prominent brands and institutions. And that includes using those brands’ and institutions’ trademarks as part of an expressive message, whether the message appears on a website or a T-shirt. 

But when VIP Products made a squeaky dog toy into a parody of Jack Daniel’s well-known whiskey label and bottle, Jack Daniel’s tried using federal trademark law to muzzle VIP’s humorous parody. And that is a danger to free speech. Trademark owners can exploit holes in the current test for trademark infringement to chill protected speech, including against those without the means to defend themselves in complex and costly trademark lawsuits. Indeed, ������ýapp�ٷ�’s work has shown colleges and universities too often make trademark threats against student and faculty expression because they disagree with a message’s viewpoints.

On February 23, 2023 FIREfiled an amicus brief in the Supreme Court of the United States supporting VIP Products. Because of the danger to free expression from those who abuse trademark rights, ������ýapp�ٷ�’s brief urges the Court to adopt a test that shields legitimate expressive uses of another’s trademark from the usual cost and complexity of trademark lawsuits. As FIREexplains, the test must focus on whether an expressive use of another’s trademark is communicating ideas or points of view—and not on whether it’s a usable good like a T-shirt or a squeaky toy.

On June 8, 2023, the Supreme Court of the United States issued a unanimous decision. Because VIP acknowledged it was using Jack Daniel’s trademark (albeit with a humorous spin) to identify its own products, the Court concluded that VIP “does not receive special First Amendment protection.”