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Legal Principle at Issue

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. 

Action

In a 9-0 decision issued on June 8, 2023, the Supreme Court dismissed the arguments over the Rogers test and ruled in favor of Jack Daniel's. Writing for the unanimous Court, Justice Kagan explained how the primary function of a trademark is to identify a product’s source and distinguish that source from others. Because VIP acknowledged that it was using the “Bad Spaniels” parody of Jack Daniel’s trademark in this way — that is, using a humorous spin on Jack Daniel’s trademark as VIP’s own trademark — the Court concluded that VIP “does not receive special First Amendment protection.”

Facts/Syllabus

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. 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 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.” 

Importance of Case

FIRE filed 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 urged 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 FIREexplained, 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.