The U.S. Supreme Court handed brand owners a win against parody products on Thursday when it ruled that 'Bad Spaniels' dog toys resembling Jack Daniel's whiskey bottles are not shielded by the U.S. Constitution from the liquor maker's trademark lawsuit.
A dog toy called “Bad Spaniels,” shaped like a Jack Daniel's whiskey bottle, at the center of a trademark dispute that will go before the U.S. Supreme Court this week in a case that could redefine how the judiciary applies constitutional free speech rights to trademark law, is seen in Washington, U.S. on March 9, 2023. REUTERS/Jim BourgJune 12 - The U.S.
But in a 9-0 decision, the justices said a precedent known as the Rogers test for assessing the use of trademarks in artistic expression did not apply to VIP's products, reversing a U.S. appeals court and raising the bar for parodies to survive trademark claims. "On the one hand, this is a victory for artists," said Megan Bannigan, a partner at Debevoise & Plimpton. Bannigan said the decision is "also a victory for brands" because it clarifies that the Rogers test does not apply when branding is being used as a typical trademark to identify a source of goods without permission.
Masters said the decision could force companies that want to engage in parodies to ink licensing deals or find ways "to be more creative" and less similar to the brands they reference.Alexandra Roberts, a law professor at Northeastern University, cited a "Chick-Fil-Hate" t-shirt as an example of a parody product that could still receive First Amendment protection because it conveys a message about Chick-fil-A and does not use "Chick-Fil-Hate" as a trademark.
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