It feels manifestly wrong: these corporations want their brands to become household names and common parts of our culture but they want absolute control over how we think about them.
Considering it was a 9-0 unanimous decision, and we have large variation in ideology on the court, I think the issue and decision has more nuance than “corporations always win!!”.
The validity of the judgement and and the question of if corporations have too much power over their trademarks are separate issues.
The court is almost certainly correct that the law of the land is that trademark protections are this strong. But trademark law is a creation of congress, and one can believe that the protections are excessive without believing that they are unconstitutional.
1. SCOTUS has made bad unanimous decisions before. For one, no one on the bench is an anti-capitalist, there's no 6-3 split on that matter.
2. Even if a ruling is in accordance with the law, the law itself may still be wrong. Iran courts ordering capital punishment for a gay couple is accurately upholding the law.
Which corporations? Jack Daniel's? In what ways have they worked towards having absolute control over our thoughts?
To clarify, the reason I'm asking is it seems like you're attributing the combined malice of various corps to all corps, which is counter-productive to solving problems, in my opinion.
Part of their complaint referenced in this decision was that the toy “associates jack Daniel’s with dog excrement” which I did laugh out loud in shock at when I first read it. It does seem a bit Orwellian, in the loosest sense - if I want to associate your brand with dog excrement then it’s my god given right!
Personally I disagree with the ruling but also agree with Jack Daniels parent corp for trying to protect their image. If someone in my social group decided it would be funny to sell t-shirts with my face on it, with the phrase "shithead steve" or something on it, then I too would want to "control" the way people think of me by taking legal avenues to prevent the person from selling those t-shirts. After all, is it really pro-social to make profit at the expense of my reputation? Seems like a behavior society would be better off without.
At the core of the First Amendment is, I think, the idea that there is no speech objectivity and if someone in particular is allowed to police speech, it will be policed in a very biased way (ie. by those with the power). That's why "a behaviour society would be better off without" is fundamentally problematic.
It is likely obvious to any individual how to enumerate those behaviours, but good luck getting everyone to agree. And super good luck avoiding the endless growth of that list. I think that's partly why parody is so well-established as 1A protected and why why there's nothing legally problematic with a "Shithead Steve" shirt, as ugly as you and I would both find that to be.
If people find the First Amendment to be a nuisance when they're trying to silence speech that they feel society would be better off without, then the amendment is doing its intended job.
I don’t think that’s fair. Presumably this wouldn’t apply to public figures - making “the president is a shithead” shirts illegal is the quintessential speech we need to protect.
From there, I really don’t see how one could draw a line with any meaningful efficacy. if I make a “coastal elites are shitheads” can any individual one of them sue me? If I make a “Steve is a shithead because he eats meat/scams people/[insert immoral-but-legal behavior]” shirt could he sue me? If a comedian makes a joke about somebody being a shithead, should they be liable?
All of this is besides the point though. I honestly was super shocked by your comment, because I didn’t know there were people out there who thought “being mean” should be _illegal_. Like, why isn’t it pro-social? Is it the governments place to enforce social etiquette?? Would be curious to hear an elaboration. Maybe your concern is specifically the profit part?
You misunderstand me. I'm saying it should be legal, but just because something is legal doesn't mean it's good for society and thus society _should_ pursue legal means to stop people from doing things that are socially bad.
There are other, legal, means of discouraging a behavior than just putting a law on the books and letting the judicial system handle it.
Yeah, I think there should be an "iconic" test to this stuff. If your brand is a household name ("before I leave brush my teeth with a bottle of Jack") then you lose some amount of control over it. You still can't use the mark in the product segment of the mark and you can't imply the product is endorsed by the company but after that go hog wild.
This is such a weird ruling because the product under consideration is something that should obviously be allowed but the law the court was asked to interpret was so cut and dry. IP law is too strong.
I don't think so. Jack Daniels spent a lot of money to make their logo and bottle widely known. Another company is 1) trying to make money off of that spend, and 2) destroying value created by Jack Daniels. Trademark law is a relatively non-contentious aspect of intellectual property as is evidenced by the 9-0 vote.
But the question is confusion over product in the same product area.
It seems absurd to me that a reasonable person would confuse that dog toy parody with an actual Jack Daniels product.
Also, unanimity per se doesn't necessarily mean the court is on the right side of things: I'm not sure that positions on, say, abortion necessarily translates into trademark positions.
One nuance in this that seems to be lost though if I'm recalling the case correctly is that this isn't deciding the case, it's just saying it can't automatically be dismissed pre trial. So maybe that's where the unanimity comes into play.
Still, between this and the Worhol case I'm concerned. Overall this doesn't seem like a good path to be going down in my personal opinion. To me a dog toy that's clearly a parody should be protected speech, probably more clearly than other things.
It feels to me like there's this emerging zeitgeist of "commercial entities are above real criticism because they might be financially injured" which is absurd, and more than an individual would enjoy in terms of protection.
Let's say you made a Trump brand dog toy? Would it be reasonable to say that is not protected speech because it infringes on his trademark?
I feel the same way about digital signatures, companies want people to trust their signatures, but are they going to share the signing keys and let others in on the fun? No. Everyone just goes around saying its their keys, their identities, you can't let other people use them, what if someone abused them.
As if there was more value in having a trusted identity than in the value of the money I could make from the rootkit I would sneak into Debian.
Note that the court didn't rule that this parody product couldn't be made, they ruled that courts have to use a stricter test than the Rogers test to determine whether the parody product is legal. Perhaps this ruling still gives corporations too much control, but it's far from "absolute control."
It feels like the outcome boils down to this: if you build a business around making your product look exactly like another business’s trademark, you’re not protected from a lawsuit.
That doesn’t feel like the end of the world. (Obligatory IANAL.)
Why did people buy the dog toy? Pretty sure it's because it looked like JD, which is highly recognizable. If it was just a generic bottle that said "liquor" on it, I would guess that sales would have been lower. I agree with you - seems pretty clear that they're profiting off JD's image, and it's tough to call this any meaningful kind of parody that deserves protection.
I think it's just as meaningful of a parody as a weird al song. And this is just trademark not copyright. You're supposed to be able to use and reference trademarks as long as it can't be confused as the original. Just like you can use a famous person's name to make fun of them.
Does this mean it is now illegal to make a red and white dildo and call it Cock-a-cola?
What if politicians start trademarking their names and faces and start suing people for talking shit?
How is a dog toy a parody of Jack Daniels? What is the content of the speech/commentary?
If you look at the actual toy, it's just an exact replica of a Jack Daniels bottle with a few words changed. It doesn't make fun of Jack Daniels or drinking culture or anything at all.
To wildly generalize, my understanding is that one of the (legal) components for parody is that you need to be actually commenting on the thing you're parodying. Just referencing something that exists in pop culture doesn't mean it's protected parody.
I.e. this dog toy wasn't saying anything about Jack Daniels. It was just a dog toy that looked like a dog-poop themed bottle of Jack Daniels. If it was part of some general message of "Jack Daniels is dogshit", I believe that it'd have been unambiguously protected.
The SC actually decided something else. They decided that you can't defend your product's only branding as parody, whatever form it takes. If something is your trademark, you have to defend it from being an infringement of someone else's trademark solely on the basis of customer confusion (i.e. prove that the accuser is wrong in saying that their customers would buy your products in confusion).
You can use someone else's trademarks in your parody, but only if that parody is branded differently (e.g. the Barbie Girl song was not branded using Barbie logos, it was using AQUA's logos).
>Does this mean it is now illegal to make a red and white dildo and call it Cock-a-cola?
I'm not a lawyer but I'm guessing yes.
Note that, as with somewhat related Dr. Seuss copyright cases [1], some of it relates to whether something is actually a satire/parody or whether you're just taking advantage of someone else's IP to sell something--even if it's a non-competitive something. As someone else noted, it's not clear that Weird Al's songs would in general be OK if he didn't license the source material.
> I think it's just as meaningful of a parody as a weird al song.
This is just taking the exact JD bottle shape and logo, changing a couple of words and making it a plush toy. A Weird Al song is an entirely new song, written and performed to the beat of the current song. The difference is a lot of hours of time and creativity.
> You're supposed to be able to use and reference trademarks as long as it can't be confused as the original.
Songs can't be trademarked, so this isn't a relevant comparison in any case.
> What if politicians start trademarking their names and faces and start suing people for talking shit?
Again, you generally cannot trademark your likeness. There are exceptions for its commercial use, but the ability to "talk shit" about politicians is highly protected.
On one hand, it is intentionally made to look like a Jack Daniels bottle... on the other hand it's not nearly the same product type and it won't interfere with product sales for actual Jack Daniels company.
If we look at other similar concepts, can an apple (=fruit, or juice or strudel, etc.) company use an image of an apple with a bite taken out? Or will apple get grounds to sue?
Jack Daniels invented their distinctive design, and this was specifically imitating that. There is no owner of the concept of what an apple looks like, with or with a bite taken out of it, except for the specific logo images copyrighted by someone like a Apple Inc.
What’s relevant here is that the chance is illegally high that someone who looks at the general appearance of the dog toy but doesn’t take the time to read the actual words might think, “oh cool, Jack Daniels is releasing a dog toy!” rather than that another company is parodying Jack Daniels.
It’s exactly this kind of confusion which trademark law is meant to prevent. Even someone who reads the words on the toy might think, “oh cool, Jack Daniels has enough of a sense of humor to make fun of themselves on a dog toy.” It’s legitimately not obvious that the toy isn’t from them.
It's the George Carlin defense of trademark. "Looks how dumb the average person is, then realize half of them are dumber than that your honor! Ergo, ceteris paribus, E pluribus unum, everyone is violating our copyright/patent/trademark and all should pay us royalties."
Nah. Cause well known brands can and do put/share-out their identity on all kinds of stupid shit. Therefore the Whiskey to DogToy boundary is very thin.
I don't know anything about the law, but this should be the basis. This company is not taking anything away from JD or confusing anyone, so it should be allowed. If it was an actual bottle of liquor you'd have an argument. If it was a dog toy called Jack Daniels you'd have an argument. It's a dog toy called "Bad Spaniels". I don't understand why Jack Daniels even cares.
What if the Jack Daniels company had introduced a self-parodic dog toy called Bad Spaniels with the same design? Wouldn’t that actually be pretty good marketing for them? I think lots of whiskey-loving dog owners would buy that toy from Jack Daniels and be quite happy about it.
How would a casual observer distinguish that possibility from the true scenario, when the design was intentionally quite similar to the Jack Daniels design and a self-parody is not at all unlikely?
And if you accept that this isn’t easy to distinguish: if the third-party Bad Spaniels toy has some safety problem that causes dogs or small kids to suffer and requires a recall, wouldn’t that unjustly hurt the reputation of Jack Daniels for anyone who does get confused as to the origin of the product?
Makes sense to me that they’d care. This kind of thing is the whole point of trademark law.
The thing that confuses me (as someone that knows very little about the topic) is that I thought the primary purpose of trademark law is to avoid consumer confusion (as opposed to copyright which is about IP, which I actually could see protecting logos and other brand designs in cases like these). If I look at that dog toy, I understand that it's clearly referencing JD, but it also seems obviously evidently clear that it's not JD, nor do I think people would assume it was produced by JD.
Of course when a decision comes down 9-0 from the Supreme Court, I have to assume I'm missing some understanding here.
Well, there were two points about that on this case. The first was that JD hired an expert to do a blind study on whether there would be potential confusion (and that's what you have to show, potential not necessarily actual) and found that, despite what one might think, it showed there could indeed be confusion.
But also, even if you were able to show the expert's study design was badly done and/or biased, there is another prong to trademark and that is dilution. When the brand is as famous as JD, they can argue that another company copying them is causing harm to their brand's reputation. Considering this dog toy product compared JD to dog shit, the court ruled that there definitely was dilution.
The last part is if the parody is directly related to the commercial aspect of the product. The defendant in this case admittedly used the parody brand as a trademark for themselves, and so the courts found it was indeed directly related to the business aspect.
I think you mean trademark tarnishment instead of dilution.
The act of associating a trademarked product with something distasteful or disagreeable is considered a tortious offense called tarnishment. Tarnishment is when you use a Dallas Cowboy's cheerleader outfit in an adult film[1]. The filmmakers argued it was parody, but the judges didn't think the adult film was comedic.
However, naming a reasonably good character in your children's film "SPA'AM" is not considered trademark tarnishment[2].
> If I look at that dog toy, I understand that it's clearly referencing JD, but it also seems obviously evidently clear that it's not JD, nor do I think people would assume it was produced by JD
I disagree with that, and so did the Supreme Court justices. Companies put out "side products" of their own all the time. Think about Tesla's flamethrower, or their tequila. I could easily imagine a liquor company putting out some good-natured pet products that imitated their primary brand.
The Supreme Court made no such ruling. They ruled that the parody should not be considered protected under 1st amendment free speech grounds. They sent it back to the lower courts for a ruling on if it violated copyright under consumer confusion grounds.
So we should sue all glass manufacturers to stop them from putting out windows in case Microsoft decides to get into that side business? I am of course joking, but that's the problem with protecting side products, especially in likeness vs actual logo situations (again,just think of all the manufacturers of crappy, leaky, easily breakable windows that need to be upgraded prematurely, that would have to shut down).
If you study economics for any length of time you will realize the majority of human misery is driven by market power abuses restricting human ingenuity, pushing labor prices artificially, etc. Copyright, patent, and trademark explicitly increase market power substantially and so it is very dangerous to do what the supreme court did, as the fundamental test for these things should be "what is the minimum we can do to solve x?" where x is a problem like brand confusion, product safety, etc. What was done in this ruling was to push us even further from the minimum and it's a very bad thing for society.
Your example is so absurd I feel it hardly warrants comment. If a window manufacturer puts out windows with the MS windows logo, and when you open it it makes the XP startup sound, then yes, I think it would be infringing. But nobody thinks a plain window would be confused with MS Windows.
I don't see any problem with this ruling whatsoever. It says nothing about parody for non-commercial purposes. The dog toy owner was specifically trying to leverage JD's brand for his own economic benefit. And it's not like a patent, where patent owners try to remove the ability to make something that sometimes isn't even that novel in the public sphere.
Slippery slope arguments are incredibly weak here if you look at the actual content of the ruling.
It also says nothing about parody for commercial purposes. It just says that you can't claim parody as a defense of your own trademark. If the dog toys had had some specific trademark of the original company, but then also some parody of Jack Daniels bottles on them, the ruling may well have agreed that they are protected under the parody exceptions. The problem was not that they were profitting off of their parody, but that they used the parody itself as their only trademark.
It's as if instead of the band AQUA releasing a song called "Barbie Girl", there had been a band called "Barbie Girl" which used the Barbie logo in all of their branding and album covers, and then tried to claim they were just a parody.
Reading the article, I believe the SCOTUS decision is not making any claim whether the toy violates JD's trademark. Rather, they are deciding that the lower court's ruling that it did not violate was invalid because that court applied a rule that it shouldn't have. So it will probably be re-tried without that rule applied, and a jury (or judge or whoever) will then decide whether it violates under that revised understanding of the law. The argument you're making would be relevant to that trial, not the appeal that SCOTUS just ruled on.
In general, appeals courts such as SCOTUS never decide on the facts of the case. They only determine whether a lower court "screwed up" somehow, and can reverse rulings or offer re-trials if so.
Relevant quotes from the article:
> 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
> The Rogers test is "not appropriate when the accused infringer has used a trademark to designate the source of its own goods - in other words, has used a trademark as a trademark," Justice Elena Kagan wrote.
> The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
Thanks, this helps clarify it a lot. I went and looked up a few more articles, and I think I still remain confused a bit about the second quote you list -- specifically what it means to use "a trademark as a trademark", as it seems like the decision written by Justice Kagan hinges on this concept.
The term "trademark" is literally a "mark" (identifying symbol) for "trade" (commercial purposes). Kagan's quote is basically saying that the Roger's test only applies when you're using trademarks for noncommercial purposes.
It's not about non-commercial purposes. "Barbie Girl", the song that actually created the Rogers Test to begin with, is definitely a commercial product.
The new decision says that the Rogers Test should only be applied to things that are not in and of themselves trademarks. So, if someone is referencing the Pepsi logo in their movie, or in an advert, or in a painting they are selling, you should apply the Rogers Test to see if that is a violation of the trademark or not.
But if the Pepsi logo (or something that Pepsi claims is too similar to it) is the only one showing up on their beverage packaging, or on the shoes they're selling, or on a T-shirt and all of its labeling, even if that T-shirt is being given away at a charity event and is thus non-commercial - well, then they are using a trademark as a trademark, and now they can't rely on the Rogers test. Instead, they have to be judged on the buyer confusion standard (would a regular person believe they are getting an official Pepsi product when seeing this item, or not?).
To build on your Pepsi example: I could probably sell a chew toy that looked like a bottle of Pepsi with my "Pupsi" look-alike logo and the Rogers Test could be applied, but if I trademarked (officially or via branding) the Pupsi name and infringing logo by say, selling a line of Pupsi-branded pet supplies, it would not. Pepsi would then be able to pursue the "consumer confusion" argument that most people think of in IP/trademark disputes.
The SCOTUS decision is all about shutting down the short-circuit that the lower court applied, now requiring them to go back and decide on the confusion question.
> “Barbie Girl”, the song that actually created the Rogers Test to begin with
The Rogers Test comes from Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which asked whether an Italian film named “Ginger and Fred” infringed a trademark of famous film stars Ginger Rogers and Fred Astaire.
> what it means to use "a trademark as a trademark"
The alternative is called “nominative use”, which is to use the mark of another to refer to the other’s goods or services.
For example, a cola manufacturer can write in an advert, “Better than Coca-Cola!” and it does not infringe the Coca-Cola mark, because the name is being used to identify the competitor’s product. If the same company called its own product “Better Coca-Cola”, however, that would be using the trademark as a trademark and it could potentially infringe. (Probably would, in fact.)
So the SCOTUS didn't rule that it did or did not violate the trademark. They ruled that there wasn't a direct first amendment protection for it and that it needs to go back to the lower courts to be adjudicated. Basically the case can't be dismissed outright based on first amendment precedent/law.
I don’t fully follow this, but this seems to be the crux of the ruling:
> The Rogers test is "not appropriate when the accused infringer has used a trademark to designate the source of its own goods - in other words, has used a trademark as a trademark," Justice Elena Kagan wrote.
…
> VIP had conceded that it used "Bad Spaniels" as a trademark.
They then make a comparison to the song Barbie Girl (apparently also resulted in a lawsuit but with the opposite outcome), since that uses a trademark not as a trademark.
This all seems to be about specifically whether the Rogers Test[0] applies, with brand confusion questions still requiring proof later (probably by a lower court):
> The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
The question about consumer confusion is what gets figured out in the lawsuit. My understanding is that the Supreme Court ruling was about whether or not that lawsuit is allowed to go forward, NOT the actual outcome of the lawsuit.
Branding has almost transcended physical products. Apple Computers and Apple Corps were allowed to exist in the same markets because computers are not music. However, the now Apple Inc is more than computers. It's software, phones, tablets, chip manufacturing, streaming, etc.
No, no one is going to confuse a dog toy with a bottle of Jack Daniel's. Just like no one would confuse a magnet, shirt, pin, or a plethora of merchandise with actual Jack Daniel's whiskey.
But the Brown-Forman Corporation licenses the likeness of the label and bottle to make all of those items and more. The logotype, the shape of the bottle, the colors, all serve to remind people of the core product. They want to evoke a certain feeling associated with that brand. And if a product with their branding is made to a poor standard, if a chew toy is made with material harmful to dogs, there is a chance that people will assume that Brown-Forman is responsible.
And they may want to actually make a Jack Daniel's themed chew toy. Or license their IP to someone to do it for them.
So basically, since brands aren't really tied to a singular product any more, the entire idea of "separate domains" is rendered effectively moot at this point.
Also, IP is the larger term. It encompasses trademark law, copyright, trade secrets, and others. Trademark is actually fairly strict, "fair use" doesn't apply, and parody is not a protection
This misses the point. This question was about whether the Parody exception is valid in this case.
Was the dog toy a joke? Making a joke out of something popular is an allowed exception to trademark.
The ruling seems to say that it wasn't a joke and therefore not covered under the exception.
I get both sides of the argument. A physical product you're selling that has a clear non-parody purpose should have a higher bar to be regarded as parody.
A more difficult example might be a t-shirt with a Google logo on it that has something "funny" about Google written below.
> A more difficult example might be a t-shirt with a Google logo on it that has something "funny" about Google written below.
I think a more exact comparison would be, say, a t-shirt with a fluffy Google logo and the text changed to say "Poodle". It's not really saying anything about Google, it's just using Google-related imagery mashed up with dog-related imagery.
I'm not sure that's a better comparison, because the subject of the JD lawsuit, the toy had the exact imagery of the JD brand - not an alteration of it.
It's subjective, but to me the picture of the dog toy in the article looks about as distinct from a real bottle of Jack Daniels as that Google logo example.
There is legal importance in the brand symbol specifically - moreso than the product shape. The correct comparison is brand symbol/mark to brand symbol/mark.
A crucial consideration for parody is that you can't choose something else. You are parodying this particular thing, so any substitute wouldn't work, and that's why we have a right to make parodies - without such rights your work can't exist at all because you'd need the people you're poking fun at to allow it.
The example I like (even though Weird Al seeks permission and so doesn't need his fair use rights) is Weird Al's "Smells Like Nirvana" versus "Fat".
Smells Like Nirvana is necessarily about Smells Like Teen Spirit and Nirvana's video for that song. It has lyrics like "We're so loud and incoherent / Boy this oughta bug your parents". If you make that song using Dolly Parton's "9 to 5" as the basic structure, now it's just nonsense. I believe the parody exception would apply to "Smells Like Nirvana".
"Fat" isn't about Bad or Michael Jackson. Jackson wasn't fat, the character he's portraying isn't fat, the song isn't about food, there's no connection. It's just funny lyrics to the same structure. If you do this to Bon Jovi's "Living' On a Prayer" that's funny too, a few people have done so, "Standin' On a Chair" for example. If you did that and get wealthy, expect Bon Jovi's label to demand most of it, parody rules don't help you.
With the T-shirt that says "Poodle" like a Google logo, you don't need their style. You could use the Ford logo, or the McDonalds logo, or a dozen others, doubtless you'd say you wanted a double-O - does Moodle (a VLE) have a logo? I bet they do. If you wanted Google's logo 'cos it's recognisable that is not a protected reason.
As I understand it this Supreme Court decision was pretty narrow, and doesn't get into the parody question anyway.
Trademark is suppose to be about customer confusion, no one is confused here.
This is just once again showing that intellectual privilege laws are too draconian and the only solution is massive congressional reform, but that has little hope as just like the Supreme Court, the congress believes in intellectual privilege maximalism, any reform from congress will likely expand not reduce intellectual privilege
I’d have a problem if this was an artist, but it’s not art it’s somebody trying to sell dog toys that look like Jack Daniels. This is not expression that I care about protecting. The ruling talked about “trademark of a trademark” not being protected and that’s just fine.
Novel concept, my belief is there should not be any kind of test for which types of expressions should be "protected" or not...
expression that everyone supports generally does not need protection in the first place, so laws that protect only expression that is as broad appeal or support are pointless.
protection of expression needs to be for things we dislike, despise or even find abhorrent, people that claim they support protection of expression but for only things they find value in are in reality declaring they do not support freedom of expression at all.
So you’d be ok with someone using AI to generate an image of your self/spouse/child doing something unspeakably awful and putting it up on billboards around town with a suggestion that people take matters into their own hands?
That’s “expression”. What I’m trying to do is come up with a hypothetical where you really would like there to be a test for what is and is not protected.
The Supreme Court called spending money on political campaigns “expression” in the Citizens United decision, do you support that?
You can call literally any act expression, the extreme of which is literally anarchy.
>>The Supreme Court called spending money on political campaigns “expression” in the Citizens United decision, do you support that?
Yes... I do.
Why should Donald Trump be able to spend millions of his own money to create political speech, but I can not spend $1 along with 1 million of my friends to counter is. Contrary to what the common tag line is of "corporations are people now" the court recognized that corporations are made up of people, as such the people acting as a group ( corporation) are entitled to protections just as if they were acting alone as an individual.
>>So you’d be ok with someone using AI to generate an image of your self/spouse/child doing something unspeakably awful and putting it up on billboards around town with a suggestion that people take matters into their own hands?
Well that escalated quickly, that said in generally... I would probably consider that protected. The last part would be murky as I so recognize the "True Threat" doctrine, of course I am also a self defense absolutist along with a free expression absolutist, so if the hypothetical bill board expressed a true threat I believe it with in my ethical right to defend myself from that true threat.
Citizens united was clearly about expression as the term is commonly understood. Upholding the law would have given the government power to ban books, pamphlets, and most forms of communication commonly understood to be first amendment speech.
Per the government's argument, "the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or labor union."
It wasn't some crazy hypothetical about violence being an act of personal expression, or something like that. It was about other people can organize to share verbal, written, and recorded political ideas.
As with many Supreme Court rulings, the political spin far eclipsed the actual decision and arguments.
You're choosing the wrong thing to start this crusade over. Trademark law is by far the most defensible form of intellectual property, since it is very clearly necessary for a decent economy. There is no world in which it would be better for anyone to be able to claim they are selling an iPhone with iPhone branding and everything over it while selling an old Alcatel feature phone.
Also, all this case establishes is that there is no exception for comedy/sarcasm when it comes to a trademark copying someone else's trademark.
It is actually very likely that the case will be won by Bad Spaniels on simpler grounds - that their trademark will not confuse anyone into thinking they are buying a Jack Daniels bottle. And that is the right thing that the courts should decide - but it was something that Bad Spaniels was trying to avoid.
> There is no world in which it would be better for anyone to be able to claim they are selling an iPhone with iPhone branding and everything over it while selling an old Alcatel feature phone.
Except that it would not happen. In a word without trademark protection, people would be like "what the heck is an iPhone, what does it do?" because the word iPhone would have no meaning. You would have to sell based on capabilities, rather than brand name. There would have to be sufficiently strong laws against false advertising and deceptive marketing, but I can see number of advantages over the current system.
I agree with the rest of your post. The whole case is increasingly looking like a successful publicity stunt by the two companies to me. I don't think I would know anything about Bad Spaniels otherwise, and while Jack Daniels is well known, the way addiction works I would not be surprised if a large number of people were hitting their local liqueur store after seeing this case on the news.
> In a word without trademark protection, people would be like "what the heck is an iPhone, what does it do?" because the word iPhone would have no meaning. You would have to sell based on capabilities, rather than brand name
I am not aware of this ever having occurred across history. Instead, brands become personal. You don’t buy an iPhone, you buy master Tim Cook’s phone.
We have a pretty good idea of how commerce worked before widespread legal trademark protections, and you're dead wrong about it. Trademarks are much older than trademark law. Before they were protected in law, they were usually made very intricate in the hopes that other craftsmen would not be able to reproduce them, kind of like a signature.
And the reason is also self-evident: it is very hard if not impossible to assess all of the relevant capabilities of a manufactured product just on an quick inspection. Even if you were able to do so for one category of product, you'll not be an expert in every category. As such, the only way to know the true quality of products you are buying is to rely on the reputation of the one crafting them, and the branding of the products is used to establish the chain of trust (this shoe has such-and-such craftsman's mark, so I know its a quality shoe because I've bought other shoes from them in the past and they lasted two decades).
Even if you had very strong laws to prevent false advertising of features, it's extremely cost-prohibitive to establish build quality objectively without relying on the reputation of the maker. How would that even look? What would you expect to see on a non-branded shirt to tell you whether it's a good quality weave or a poor one? Whether the color is strongly bonded to the fabric or it will wash off? Whether the seams are sturdy or prone to breaking?
Of course brand names would still exist. People name things for the sake of brevity. If someone says to you, "Hey that's a nice phone, I'd like to get one, what kind is it?", are you going to rattle off its entire list of technical specs, after which they'll still have no idea how to find one?
> Trademark is suppose to be about customer confusion, no one is confused here.
If you read the article carefully, SCOTUS agrees. What the toy maker was trying to do was use a "shortcut" called the "Rogers test"; all that SCOTUS said was that the "Rogers test" shortcut wasn't applicable in this case. That means it goes back to normal trademark "customer confusion", which SCOTUS seems to think will go in favor of the toymaker; from the article (emphasis mine):
> Elizabeth Brannen, a partner at Stris & Maher, said Jack Daniel's victory "could turn out to be pyrrhic." The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
> "The likelihood of confusion analysis will still take the challenged product's funny message into account," Brannen said. She noted that the high court said consumers are "not so likely to think that the maker of a mocked product is itself doing the mocking."
A lot of people who don't follow the courts make the mistake that whatever ruling the USSC makes must necessarily be the final one on the entire case, without considering that the USSC often rules on specific issues related to the case.
Exactly. Many cases before the Supreme Court are about whether a type of case should be in court at all or should get to be heard by a jury. The decisions do not dictate the outcome, but have to do with whether the lower court made a mistake in dismissing a case early.
Here, the court is saying that Jack Daniels gets to make its case to a jury.
It's hard for the public to understand most court rulings, especially when the headlines are always so alarmist and yet the rulings, especially SCOTUS rulings, are usually so incredibly narrow and on some tiny statutory interpretation.
This case is a classic "nothing to see here" moment being paraded as if the sky is falling.
I get it though, I sometimes have to read a ruling five times just to figure out what the hell has been decided.
The vast majority of SCOTUS rulings are narrow and largely irrelevant. They also usually attract little attention.
The cases where SCOTUS attracts the most attention are the ones where fairly broad decisions are made, or at least hinted at.
The public is usually wrong in their understanding of it -- as non-experts practically always are. Nonetheless, SCOTUS does make, several times a year, decisions that have a direct bearing on people's lives. They may not understand the nuances of the decision but they know when their rights have expanded or collapsed.
Such decisions are usually issued at the end of June. Expect there to be several significant and not-at-all-narrow decisions very soon.
I live for all the 4th Amendment decisions. It's been an interesting decade for those with the changes in technology. I'd still love SCOTUS to rule that it's a 4th Amend. violation to access my stored email without a warrant. Still only an appellate decision on the topic from the 6th Cir.
A similar mistake I see people make is hearing the headline, "SCOTUS sides with party A over party B", and conclude the Court generally supports and agrees with what A did and maybe even believes A acted morally rightly.
That's not SCOTUS's job and that's not what they do (usually). It doesn't carry the voice of the people and has no mandate to do what the people want. Its job is to decide whether our system of laws as constructed by Congress (which is the voice of the people) and as bounded by the Constitution ultimately allows A or B to prevail. In no way should a ruling in favor of A be construed as an endorsement of A's action.
See Antonin Scalia's strongly worded thoughts about the Texas v Johnson flag-burning case, in which he voted contrary to his personal convictions about the morality of Johnson's actions. Because, ultimately, he knew his vote was not a moral judgment but a legal one.
For those following along at home, when a case is vacated and remanded per the Judgment, what happens from there in a particular case is for the lower courts—SCOTUS opinion in-hand—to decide, if the parties choose not to settle anyway.
> Thus was born the Rogers Test, which may only be applied to non-commercial marks, which determines that the title of an artistic work is protected under free speech from the Lanham Act when a) the title of the work has some artistic relevance to the underlying work and b) that the title is not explicitly misleading as to the source of the content of the work.
> Trademark is suppose to be about customer confusion, no one is confused here.
This is not a good take on the Supreme Court ruling, at all. I generally agree with your rhetoric about IP maximalism, but this is not the right case to trot it out for.
This case was not about whether anyone was confused. The ruling does not take a position on whether there was confusion between Bad Spaniels and Jack Daniels.
Instead, this ruling says that humor is not an absolute defense in trademark disputes. It reverses a Ninth Circuit ruling that held that, in the case of humor, the court does not need to even evaluate whether or not there was confusion.
This ruling sends the case back to the Ninth to evaluate the totality of the case, including fair use, parody, and whether the for-profit Bad Spaniels is appropriating Jack Daniels' trademarks to sell their products in a way that a reasonable person would think Jack Daniels was involved in.
The Ninth may very well find that no, there is no confusion, and the use of the trademark is indeed fair use. But they will have to consider that as a dimension of the dispute, where previously they ruled it was immaterial.
IANAL, and it's possible I've gotten some details wrong here, but IMO this is the right ruling. Just slapping a joke on an otherwise infringing product should not provide immunity from trademark claims.
It sounds like even in this case it's the context (on a bottle of whiskey) and that they trademarked their own product which made it need to even look at these other tests. And it still might be fine.
Kind of read to your comment and didn't bother reading much further, the article is pretty clear when you look for it and the headline is wildly overstating the situation.
The distinctive bottle design is part of the JD trade livery. It gets used on licensed products officially endorsed by them. It does create an implied approval when others copy the design.
Really? I believe that if you put this product in front of 100 average Walmart shoppers (mixed in with other products, some officially-licensed, some not), and asked them which items were "officially licensed", they would likely mostly have believed this toy to be "officially licensed".
I'd bet that if you asked 100 average Walmart shoppers what "officially licensed" even meant you'd get some fraction which couldn't tell you. A reasonable person however wouldn't assume it was an official Jack Daniel's product and they'd certainly have to be extremely drunk to mistake the dog toy for an actual bottle of Jack Daniel's which is the only time such a misunderstanding would cost Jack Daniel's a lost sale anyway.
Even if someone, somewhere, somehow managed to assume that Jack Daniel's was the entity behind a cute dog toy it still wouldn't hurt them any. It feels like Jack Daniel's is doing far more harm to their own reputation than the dog toy ever would have. I know lawyers love insisting that companies must to defend their trademarks to the death and treat everything that could ever conceivably come close to infringing on a trademark like it were a deadly threat, and I'm sure Jack Daniel's would love to make this toy company pay them excessive licensing fees to keep the product on shelves, but this is just silly.
> only time such a misunderstanding would cost Jack Daniel's a lost sale anyway
This is a strawman. Nobody is arguing that this loses Jack Daniels revenue, they're arguing that it waters down their IP and deprives them of the ability to monetize their brand image. Sheesh.
> Trademark is suppose to be about customer confusion, no one is confused here.
I disagree about the confusion.
1) Trying to answer the question "Is that dog toy sponsored by Jack Daniels?" suggests that there is plenty of confusion here. You have to look and read the toy in question to see that it's not actual Jack Daniel's merchandise.
2) Jack Daniel's must enforce it's trademark or it will lose it.
I think the ruling sounds even more strict than that. I read it as you can make a business that parodies another business, but you cannot then go on to trademark your parody.
It seems this case makes sense. You don't have a parody/1st amendment right to violate someone's trademark in a situation you can get a trademark yourself for a parody product. The song "Barbie Girl", 1st amendment protected. The parody squeeky toy is not because they are also bringing that product into the trademark arena.
Essentially, the USSC is saying, "judge if this new trademark infringes on Jack Daniel's current trademark based on trademark law." Where the question is not free expression but "are customers likely to think it's a Jack Daniel's affiliated product". The defense the USSC is telling the dog toy people to use is "no reasonable customer would think JD made or authorized these toys".
No, they don't have to actually trademark it themselves. It means that the Supreme Court said "this parody product is more of a commercial product than an artistic expression". Therefore, go back and argue about trademark law (which concerns itself with commercial products) and not copyright law (which concerns itself with expression).
Now, if they didn't mass produce the product and try to sell it, that would be different. Painted a dog playing with the toy and post that picture on the internet: 1st amendment.
A bit of an oversimplification and slightly wrong, but the problem is essentially that it is a Bad Spaniels brand dog toy, parodying the sound-a-like Jack Daniels brand whiskey.
There exists the Rogers Test in trademark law that says that, for an /artistic work/, all a defendant has to do is show that a) the trademark is relevant to the artistic work, and b) the title is not explicitly misleading (to make the audience think the work is created/supported by the trademark holder).
The Rogers Test, reserved for artistic work, is gentler than normal trademark defense. Bad Spaniels chew toy passed this test easily.
The Supreme Court ruled 9-0 that, because the chew toy is released by the Bad Spaniels /brand/, the Rogers /artistic work/ analysis is not appropriate.
Instead, it should be litigated as a brand vs. brand trademark dispute.
In a brand vs. brand dispute, Jack Daniels will have to instead prove that the Bad Spaniels brand is likely to cause confusion with regards to Jack Daniels brand's involvement in the product.
This is a higher bar to clear than Rogers test, because the trademark doesn't have to be explicitly confusing; it just needs to be likely.
I'm not a lawyer or a judge, but I don't think Jack Daniels will prevail even with the stricter standard.
(IMO,) this ruling is barely going to matter in the long run: if the Bad Spaniels chew bottle was sold by Bob's Novelties and did not included the word "brand" after "Bad Spaniels", then the Rogers test would still apply.
Oh man I'm split on this one. Thank god I don't need to make such hard decisions.
That is clearly not Jack Daniels. That clearly looks like Jack Daniels.
I personally would let this product slide, however, if this wasnt a dog toy, but rather liquor... yeah imagine seeing an entire isle of this stuff, it would make it hard to find the Jack Daniels.
> if this wasnt a dog toy, but rather liquor [...] it would make it hard to find the Jack Daniels.
Sure, but that wouldn't be a parody - it would be a completely different area of trademark law.
99% of trademark disputes are bourbon makers squabbling over who gets to put an eagle on their bottles, and oat milk makers squabbling over whether it's confusing that both products say 'oat' on them.
Questions of parody are a different area of law - no reasonable consumer could possibly confuse a dog toy with a bottle of whiskey.
Sounds like the product has branding marks, perhaps a tag, insignia etc., and those carried on with the same theme and thus were the actual infringing elements — not the product itself.
That would make perfect sense. The parody product alone is unlikely to be the entire issue. If so, it would make no sense at all, certainly at 9-0.
Reading the article closely, SCOTUS seems to be ruling on a legal technicality; specifically, whether the "Rogers test" applies to the case in question. A lower court said it did, which made the toy-maker's case way easier. SCOTUS says it didn't, which means the case is now just "normal"; it doesn't at all mean they've lost:
> Elizabeth Brannen, a partner at Stris & Maher, said Jack Daniel's victory "could turn out to be pyrrhic." The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
> "The likelihood of confusion analysis will still take the challenged product's funny message into account," Brannen said. She noted that the high court said consumers are "not so likely to think that the maker of a mocked product is itself doing the mocking."
Yes, it’s an technicality and this is a frequent outcome in Supreme Court cases. They often rule as narrowly as possible, regularly on technicalities. It fits the separation of powers to create as little legal reality that relies on precedent. Lower courts almost always have enough to go on and Congress ultimately makes the laws.
Things like the Rogers test are inexact and need rulings themselves, but once that’s sorted out then a lower court knows how to rule.
So is this correct: an entire trademark called bad spaniels was designed off an existing trademark, Jack Daniel's?
SCOTUS thought even though the trademark'd company is a different industry, trademark must be dissimilar to another trademark.
If so, parody of trademarks is still ok as long as business identity is not being built on those parodies. The article headline would be incorrect in this case.
There's this parody store called OmegaMart. It's an immersive art experience in Vegas, but a big part of it is that you can buy their parody items at the store. I wonder if this ruling is going to have a big effect on their ability to do business. A ton of their products are there as parodies of recognizable brands, and the only reason you would buy the products is for the parody (many of the packages are actually empty).
They've likely trademarked OmegaMart as the brand, instead of trademarking similar names to the brands they are parodying for each product. If that's the case, they will be in the clear.
> They've likely trademarked OmegaMart as the brand, instead of trademarking similar names to the brands they are parodying for each product. If that's the case, they will be in the clear.
I took a look at the OmegaMart store, and I'd agree with you in this instance.
But in general, I don't think that just using a distinct brand is enough - it's all about probable customer confusion, which is really something that determined on a case-by-case basis.
> I don't think that just using a distinct brand is enough - it's all about probable customer confusion
The entire point of this ruling was to say that using a distinct brand can be enough. Customers were not confused between a dog toy and a bottle of Jack Daniels. The issue Jack Daniels had was its distinct brand being used to sell something else.
The point of this ruling is that you can't use the parody protection for your own trademark. If you have a trademark of your own and include a parody of someone else's trademark on your items, then the parody test would apply. For example, if the dog toys had been coming in boxes that proeminently featured the toymakers' logo, then they could have probably applied the parody standard and not have to discuss customer confusion at all.
I'm not too worried... We want to protect parodies because they are humorous or make a point. That is, we want to protect freedom of expression and free speech.
Although this toy is mildly humorous, it looks to me like the main point is to a sell a toy based on its similarity to a well-known brand. I don't think this commercial purpose is really something we need to protect.
When the whole identity of your company is ripping off other products it’s fair to lose.
Nobody said it out loud but I think what they’re really trying to say is this product isn’t art, isn’t anything associated with art. Like Weird Al could write a parody about dogs and make dog toy merch that lifted some trademark and it would be fine. There’s just no protection for an entrepreneur who wants to sell shit by mimicking a trademark.
I am not a lawyer. That said, I'm not sure this counts as news.
The Rogers test comes from the 1989 case Rogers vs Grimaldi where a Ginger Rogers sued the defendants for making the flim "Ginger and Fred", saying they used her name and people thought she was involved in the film. The court ruled in favor of the defendants, finding that the film was a work of artistic expression, not a commercial product, an therefore not subject to the Lanham Act. The court used the Rogers test, which states that the use of a third-party mark in an expressive work does not violate the Lanham Act “Unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title misleads as to the source or the content of the work.”
Since then the Rogers test has been used rather inconsistently by various courts. In Cliff Notes vs Bantam, the defendant was selling books that parodied cliff notes, and used their distinctive black and yellow trade dress. The court ruled for the defendant, saying Rogers test applied because the defendant's use did not create a strong likelihood of confusion, ignoring the artistic relevance part of the Rogers test. Other courts have required a "particularly compelling" likelihood of confusion and have generally favored artistic expression, though not always.
The article argues that this is a reversal of a long standing clear precedent. But the precedent is not really clear. Various courts have struggled to determine whether a product was "artistically relevant" and whether consumers would be confused as to whether the paordied product was sponsored or created by the original since the Rogers case. And they have applied the precedent somewhat inconsistently that whole time. This is just one case where the court has ruled for the plaintif.
> VIP had conceded that it used "Bad Spaniels" as a trademark.
> 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.
> "If Chik-Fil-Hate were also on the inside of the shirt on the tag, that would be more of a trademark use," Roberts said.
Seems reasonable. It's ok for a product to identify itself as product X making a statement Y. Y can use trademarks, but X cannot.
In this case, the bottle is designed to look like a Jack Daniels bottle. If they put a visible, small yellow label at the top stating "Parody Gifts" then the rest of the design would be fine because it clearly discloses the bottle is not from Jack.
What is the larger issue here? Why is this significant?
It seems like a fine point within trademark law. It maybe sorta kinda has implications for parody speech? But even there, it doesn't seem like a major threat to parody speech unless I'm missing something.
Seems like a rotten decision that's going to result in guilt or innocence hinging on whether a judge finds a joke funny or not. At least it seems fairly narrow in that you have to be using the parody of someone else's trademark as your trademark. But it is bad. The aesthetics of judges should never be part of the law; they don't know it when they see it.
The ruling is explicitly saying that the humor of a parody doesn’t enter into the question of whether that parody is infringing on a trademark. They’re saying that using a trademark parody as a trademark must be decided on actual trademark law, not on free speech protections.
That is to say regardless of how funny or not funny someone may find my starting a “Microshit Software” company, if I start aping and using Microsoft’s trade dress in selling my own products under the Microshit brand, it is the fact that I am aping another brand means I don’t get to claim “artistic expression” to avoid answering a trademark dispute. We have to actually resolve the trademark conflict because I am using the parody elements as a brand.
Shorter read than most opinions. Contains some great quotes, considering the two products...
Kagan opens the opinion with the line: "This case is about dog toys and whiskey, two items seldom appearing in the same sentence.", which I found amusing.
> 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
I was curious what the Rogers Test was, so I looked it up. I'm glad they agreed it doesn't apply here but sets a question as to what it even does apply to.
> At the trial, Rogers offered evidence in the form of a survey that showed 43% of individuals exposed to the title of the film associated it with her
That association seems to be the point of parody and satire. This metric is also easily hacked. Funny enough, The Onion wrote a brief to the Supreme Court not too long ago over a satire case, stating that fooling people is what makes satire work[0,1]. Doing so... satirically of course.
129 comments
[ 2.3 ms ] story [ 187 ms ] threadIt feels wrong how they want it both ways.
The court is almost certainly correct that the law of the land is that trademark protections are this strong. But trademark law is a creation of congress, and one can believe that the protections are excessive without believing that they are unconstitutional.
2. Even if a ruling is in accordance with the law, the law itself may still be wrong. Iran courts ordering capital punishment for a gay couple is accurately upholding the law.
To clarify, the reason I'm asking is it seems like you're attributing the combined malice of various corps to all corps, which is counter-productive to solving problems, in my opinion.
Yes, this is subjective. Hence why I say feels like.
It is likely obvious to any individual how to enumerate those behaviours, but good luck getting everyone to agree. And super good luck avoiding the endless growth of that list. I think that's partly why parody is so well-established as 1A protected and why why there's nothing legally problematic with a "Shithead Steve" shirt, as ugly as you and I would both find that to be.
If people find the First Amendment to be a nuisance when they're trying to silence speech that they feel society would be better off without, then the amendment is doing its intended job.
From there, I really don’t see how one could draw a line with any meaningful efficacy. if I make a “coastal elites are shitheads” can any individual one of them sue me? If I make a “Steve is a shithead because he eats meat/scams people/[insert immoral-but-legal behavior]” shirt could he sue me? If a comedian makes a joke about somebody being a shithead, should they be liable?
All of this is besides the point though. I honestly was super shocked by your comment, because I didn’t know there were people out there who thought “being mean” should be _illegal_. Like, why isn’t it pro-social? Is it the governments place to enforce social etiquette?? Would be curious to hear an elaboration. Maybe your concern is specifically the profit part?
There are other, legal, means of discouraging a behavior than just putting a law on the books and letting the judicial system handle it.
This is such a weird ruling because the product under consideration is something that should obviously be allowed but the law the court was asked to interpret was so cut and dry. IP law is too strong.
It seems absurd to me that a reasonable person would confuse that dog toy parody with an actual Jack Daniels product.
Also, unanimity per se doesn't necessarily mean the court is on the right side of things: I'm not sure that positions on, say, abortion necessarily translates into trademark positions.
One nuance in this that seems to be lost though if I'm recalling the case correctly is that this isn't deciding the case, it's just saying it can't automatically be dismissed pre trial. So maybe that's where the unanimity comes into play.
Still, between this and the Worhol case I'm concerned. Overall this doesn't seem like a good path to be going down in my personal opinion. To me a dog toy that's clearly a parody should be protected speech, probably more clearly than other things.
It feels to me like there's this emerging zeitgeist of "commercial entities are above real criticism because they might be financially injured" which is absurd, and more than an individual would enjoy in terms of protection.
Let's say you made a Trump brand dog toy? Would it be reasonable to say that is not protected speech because it infringes on his trademark?
The Supreme Court did not rule on this question. In fact it seems like they agree with you.
The decision is about something entirely different.
>It feels to me like there's this emerging zeitgeist of "commercial entities are above real criticism".
While the zeitgeist seems real, it should raise questions when examples like this are misinformation
As if there was more value in having a trusted identity than in the value of the money I could make from the rootkit I would sneak into Debian.
That doesn’t feel like the end of the world. (Obligatory IANAL.)
Does this mean it is now illegal to make a red and white dildo and call it Cock-a-cola?
What if politicians start trademarking their names and faces and start suing people for talking shit?
If you look at the actual toy, it's just an exact replica of a Jack Daniels bottle with a few words changed. It doesn't make fun of Jack Daniels or drinking culture or anything at all.
I think if you start a business and trademark a slightly distorted version of their face for your business, yes, you’ll face problems.
The 1st amendment protections for being able to talk shit about a politician seem in no danger from this ruling.
I.e. this dog toy wasn't saying anything about Jack Daniels. It was just a dog toy that looked like a dog-poop themed bottle of Jack Daniels. If it was part of some general message of "Jack Daniels is dogshit", I believe that it'd have been unambiguously protected.
You can use someone else's trademarks in your parody, but only if that parody is branded differently (e.g. the Barbie Girl song was not branded using Barbie logos, it was using AQUA's logos).
I'm not a lawyer but I'm guessing yes.
Note that, as with somewhat related Dr. Seuss copyright cases [1], some of it relates to whether something is actually a satire/parody or whether you're just taking advantage of someone else's IP to sell something--even if it's a non-competitive something. As someone else noted, it's not clear that Weird Al's songs would in general be OK if he didn't license the source material.
[1] https://www.jdsupra.com/legalnews/who-s-who-dr-seuss-and-cop...
This is just taking the exact JD bottle shape and logo, changing a couple of words and making it a plush toy. A Weird Al song is an entirely new song, written and performed to the beat of the current song. The difference is a lot of hours of time and creativity.
> You're supposed to be able to use and reference trademarks as long as it can't be confused as the original.
Songs can't be trademarked, so this isn't a relevant comparison in any case.
> What if politicians start trademarking their names and faces and start suing people for talking shit?
Again, you generally cannot trademark your likeness. There are exceptions for its commercial use, but the ability to "talk shit" about politicians is highly protected.
Dogebrau Anarchist IPA isn’t half bad compared to the expensive alternative.
On one hand, it is intentionally made to look like a Jack Daniels bottle... on the other hand it's not nearly the same product type and it won't interfere with product sales for actual Jack Daniels company.
If we look at other similar concepts, can an apple (=fruit, or juice or strudel, etc.) company use an image of an apple with a bite taken out? Or will apple get grounds to sue?
What’s relevant here is that the chance is illegally high that someone who looks at the general appearance of the dog toy but doesn’t take the time to read the actual words might think, “oh cool, Jack Daniels is releasing a dog toy!” rather than that another company is parodying Jack Daniels.
It’s exactly this kind of confusion which trademark law is meant to prevent. Even someone who reads the words on the toy might think, “oh cool, Jack Daniels has enough of a sense of humor to make fun of themselves on a dog toy.” It’s legitimately not obvious that the toy isn’t from them.
How would a casual observer distinguish that possibility from the true scenario, when the design was intentionally quite similar to the Jack Daniels design and a self-parody is not at all unlikely?
And if you accept that this isn’t easy to distinguish: if the third-party Bad Spaniels toy has some safety problem that causes dogs or small kids to suffer and requires a recall, wouldn’t that unjustly hurt the reputation of Jack Daniels for anyone who does get confused as to the origin of the product?
Makes sense to me that they’d care. This kind of thing is the whole point of trademark law.
Of course when a decision comes down 9-0 from the Supreme Court, I have to assume I'm missing some understanding here.
But also, even if you were able to show the expert's study design was badly done and/or biased, there is another prong to trademark and that is dilution. When the brand is as famous as JD, they can argue that another company copying them is causing harm to their brand's reputation. Considering this dog toy product compared JD to dog shit, the court ruled that there definitely was dilution.
The last part is if the parody is directly related to the commercial aspect of the product. The defendant in this case admittedly used the parody brand as a trademark for themselves, and so the courts found it was indeed directly related to the business aspect.
However, naming a reasonably good character in your children's film "SPA'AM" is not considered trademark tarnishment[2].
[1]https://scholar.google.com/scholar_case?case=110145089733630...
[2]https://scholar.google.com/scholar_case?case=161886856728668...
I disagree with that, and so did the Supreme Court justices. Companies put out "side products" of their own all the time. Think about Tesla's flamethrower, or their tequila. I could easily imagine a liquor company putting out some good-natured pet products that imitated their primary brand.
If you study economics for any length of time you will realize the majority of human misery is driven by market power abuses restricting human ingenuity, pushing labor prices artificially, etc. Copyright, patent, and trademark explicitly increase market power substantially and so it is very dangerous to do what the supreme court did, as the fundamental test for these things should be "what is the minimum we can do to solve x?" where x is a problem like brand confusion, product safety, etc. What was done in this ruling was to push us even further from the minimum and it's a very bad thing for society.
I don't see any problem with this ruling whatsoever. It says nothing about parody for non-commercial purposes. The dog toy owner was specifically trying to leverage JD's brand for his own economic benefit. And it's not like a patent, where patent owners try to remove the ability to make something that sometimes isn't even that novel in the public sphere.
Slippery slope arguments are incredibly weak here if you look at the actual content of the ruling.
It's as if instead of the band AQUA releasing a song called "Barbie Girl", there had been a band called "Barbie Girl" which used the Barbie logo in all of their branding and album covers, and then tried to claim they were just a parody.
In general, appeals courts such as SCOTUS never decide on the facts of the case. They only determine whether a lower court "screwed up" somehow, and can reverse rulings or offer re-trials if so.
Relevant quotes from the article:
> 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
> The Rogers test is "not appropriate when the accused infringer has used a trademark to designate the source of its own goods - in other words, has used a trademark as a trademark," Justice Elena Kagan wrote.
> The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
The new decision says that the Rogers Test should only be applied to things that are not in and of themselves trademarks. So, if someone is referencing the Pepsi logo in their movie, or in an advert, or in a painting they are selling, you should apply the Rogers Test to see if that is a violation of the trademark or not.
But if the Pepsi logo (or something that Pepsi claims is too similar to it) is the only one showing up on their beverage packaging, or on the shoes they're selling, or on a T-shirt and all of its labeling, even if that T-shirt is being given away at a charity event and is thus non-commercial - well, then they are using a trademark as a trademark, and now they can't rely on the Rogers test. Instead, they have to be judged on the buyer confusion standard (would a regular person believe they are getting an official Pepsi product when seeing this item, or not?).
The SCOTUS decision is all about shutting down the short-circuit that the lower court applied, now requiring them to go back and decide on the confusion question.
The Rogers Test comes from Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which asked whether an Italian film named “Ginger and Fred” infringed a trademark of famous film stars Ginger Rogers and Fred Astaire.
https://en.m.wikipedia.org/wiki/Rogers_v._Grimaldi
The alternative is called “nominative use”, which is to use the mark of another to refer to the other’s goods or services.
For example, a cola manufacturer can write in an advert, “Better than Coca-Cola!” and it does not infringe the Coca-Cola mark, because the name is being used to identify the competitor’s product. If the same company called its own product “Better Coca-Cola”, however, that would be using the trademark as a trademark and it could potentially infringe. (Probably would, in fact.)
> The Rogers test is "not appropriate when the accused infringer has used a trademark to designate the source of its own goods - in other words, has used a trademark as a trademark," Justice Elena Kagan wrote.
…
> VIP had conceded that it used "Bad Spaniels" as a trademark.
They then make a comparison to the song Barbie Girl (apparently also resulted in a lawsuit but with the opposite outcome), since that uses a trademark not as a trademark.
This all seems to be about specifically whether the Rogers Test[0] applies, with brand confusion questions still requiring proof later (probably by a lower court):
> The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
[0]: https://en.m.wikipedia.org/wiki/Rogers_v._Grimaldi
9-0 is a great clue that if the headline is confusing then maybe it's time to read the controlling opinion in the decision.
Branding has almost transcended physical products. Apple Computers and Apple Corps were allowed to exist in the same markets because computers are not music. However, the now Apple Inc is more than computers. It's software, phones, tablets, chip manufacturing, streaming, etc.
No, no one is going to confuse a dog toy with a bottle of Jack Daniel's. Just like no one would confuse a magnet, shirt, pin, or a plethora of merchandise with actual Jack Daniel's whiskey.
But the Brown-Forman Corporation licenses the likeness of the label and bottle to make all of those items and more. The logotype, the shape of the bottle, the colors, all serve to remind people of the core product. They want to evoke a certain feeling associated with that brand. And if a product with their branding is made to a poor standard, if a chew toy is made with material harmful to dogs, there is a chance that people will assume that Brown-Forman is responsible.
And they may want to actually make a Jack Daniel's themed chew toy. Or license their IP to someone to do it for them.
So basically, since brands aren't really tied to a singular product any more, the entire idea of "separate domains" is rendered effectively moot at this point.
Also, IP is the larger term. It encompasses trademark law, copyright, trade secrets, and others. Trademark is actually fairly strict, "fair use" doesn't apply, and parody is not a protection
Was the dog toy a joke? Making a joke out of something popular is an allowed exception to trademark.
The ruling seems to say that it wasn't a joke and therefore not covered under the exception.
I get both sides of the argument. A physical product you're selling that has a clear non-parody purpose should have a higher bar to be regarded as parody.
A more difficult example might be a t-shirt with a Google logo on it that has something "funny" about Google written below.
I think a more exact comparison would be, say, a t-shirt with a fluffy Google logo and the text changed to say "Poodle". It's not really saying anything about Google, it's just using Google-related imagery mashed up with dog-related imagery.
The example I like (even though Weird Al seeks permission and so doesn't need his fair use rights) is Weird Al's "Smells Like Nirvana" versus "Fat".
Smells Like Nirvana is necessarily about Smells Like Teen Spirit and Nirvana's video for that song. It has lyrics like "We're so loud and incoherent / Boy this oughta bug your parents". If you make that song using Dolly Parton's "9 to 5" as the basic structure, now it's just nonsense. I believe the parody exception would apply to "Smells Like Nirvana".
"Fat" isn't about Bad or Michael Jackson. Jackson wasn't fat, the character he's portraying isn't fat, the song isn't about food, there's no connection. It's just funny lyrics to the same structure. If you do this to Bon Jovi's "Living' On a Prayer" that's funny too, a few people have done so, "Standin' On a Chair" for example. If you did that and get wealthy, expect Bon Jovi's label to demand most of it, parody rules don't help you.
With the T-shirt that says "Poodle" like a Google logo, you don't need their style. You could use the Ford logo, or the McDonalds logo, or a dozen others, doubtless you'd say you wanted a double-O - does Moodle (a VLE) have a logo? I bet they do. If you wanted Google's logo 'cos it's recognisable that is not a protected reason.
As I understand it this Supreme Court decision was pretty narrow, and doesn't get into the parody question anyway.
This is just once again showing that intellectual privilege laws are too draconian and the only solution is massive congressional reform, but that has little hope as just like the Supreme Court, the congress believes in intellectual privilege maximalism, any reform from congress will likely expand not reduce intellectual privilege
expression that everyone supports generally does not need protection in the first place, so laws that protect only expression that is as broad appeal or support are pointless.
protection of expression needs to be for things we dislike, despise or even find abhorrent, people that claim they support protection of expression but for only things they find value in are in reality declaring they do not support freedom of expression at all.
That’s “expression”. What I’m trying to do is come up with a hypothetical where you really would like there to be a test for what is and is not protected.
The Supreme Court called spending money on political campaigns “expression” in the Citizens United decision, do you support that?
You can call literally any act expression, the extreme of which is literally anarchy.
Yes... I do.
Why should Donald Trump be able to spend millions of his own money to create political speech, but I can not spend $1 along with 1 million of my friends to counter is. Contrary to what the common tag line is of "corporations are people now" the court recognized that corporations are made up of people, as such the people acting as a group ( corporation) are entitled to protections just as if they were acting alone as an individual.
>>So you’d be ok with someone using AI to generate an image of your self/spouse/child doing something unspeakably awful and putting it up on billboards around town with a suggestion that people take matters into their own hands?
Well that escalated quickly, that said in generally... I would probably consider that protected. The last part would be murky as I so recognize the "True Threat" doctrine, of course I am also a self defense absolutist along with a free expression absolutist, so if the hypothetical bill board expressed a true threat I believe it with in my ethical right to defend myself from that true threat.
Per the government's argument, "the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or labor union."
It wasn't some crazy hypothetical about violence being an act of personal expression, or something like that. It was about other people can organize to share verbal, written, and recorded political ideas.
As with many Supreme Court rulings, the political spin far eclipsed the actual decision and arguments.
Also, all this case establishes is that there is no exception for comedy/sarcasm when it comes to a trademark copying someone else's trademark.
It is actually very likely that the case will be won by Bad Spaniels on simpler grounds - that their trademark will not confuse anyone into thinking they are buying a Jack Daniels bottle. And that is the right thing that the courts should decide - but it was something that Bad Spaniels was trying to avoid.
Except that it would not happen. In a word without trademark protection, people would be like "what the heck is an iPhone, what does it do?" because the word iPhone would have no meaning. You would have to sell based on capabilities, rather than brand name. There would have to be sufficiently strong laws against false advertising and deceptive marketing, but I can see number of advantages over the current system.
I agree with the rest of your post. The whole case is increasingly looking like a successful publicity stunt by the two companies to me. I don't think I would know anything about Bad Spaniels otherwise, and while Jack Daniels is well known, the way addiction works I would not be surprised if a large number of people were hitting their local liqueur store after seeing this case on the news.
I am not aware of this ever having occurred across history. Instead, brands become personal. You don’t buy an iPhone, you buy master Tim Cook’s phone.
And the reason is also self-evident: it is very hard if not impossible to assess all of the relevant capabilities of a manufactured product just on an quick inspection. Even if you were able to do so for one category of product, you'll not be an expert in every category. As such, the only way to know the true quality of products you are buying is to rely on the reputation of the one crafting them, and the branding of the products is used to establish the chain of trust (this shoe has such-and-such craftsman's mark, so I know its a quality shoe because I've bought other shoes from them in the past and they lasted two decades).
Even if you had very strong laws to prevent false advertising of features, it's extremely cost-prohibitive to establish build quality objectively without relying on the reputation of the maker. How would that even look? What would you expect to see on a non-branded shirt to tell you whether it's a good quality weave or a poor one? Whether the color is strongly bonded to the fabric or it will wash off? Whether the seams are sturdy or prone to breaking?
If you read the article carefully, SCOTUS agrees. What the toy maker was trying to do was use a "shortcut" called the "Rogers test"; all that SCOTUS said was that the "Rogers test" shortcut wasn't applicable in this case. That means it goes back to normal trademark "customer confusion", which SCOTUS seems to think will go in favor of the toymaker; from the article (emphasis mine):
> Elizabeth Brannen, a partner at Stris & Maher, said Jack Daniel's victory "could turn out to be pyrrhic." The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
> "The likelihood of confusion analysis will still take the challenged product's funny message into account," Brannen said. She noted that the high court said consumers are "not so likely to think that the maker of a mocked product is itself doing the mocking."
Here, the court is saying that Jack Daniels gets to make its case to a jury.
This case is a classic "nothing to see here" moment being paraded as if the sky is falling.
I get it though, I sometimes have to read a ruling five times just to figure out what the hell has been decided.
The cases where SCOTUS attracts the most attention are the ones where fairly broad decisions are made, or at least hinted at.
The public is usually wrong in their understanding of it -- as non-experts practically always are. Nonetheless, SCOTUS does make, several times a year, decisions that have a direct bearing on people's lives. They may not understand the nuances of the decision but they know when their rights have expanded or collapsed.
Such decisions are usually issued at the end of June. Expect there to be several significant and not-at-all-narrow decisions very soon.
That's not SCOTUS's job and that's not what they do (usually). It doesn't carry the voice of the people and has no mandate to do what the people want. Its job is to decide whether our system of laws as constructed by Congress (which is the voice of the people) and as bounded by the Constitution ultimately allows A or B to prevail. In no way should a ruling in favor of A be construed as an endorsement of A's action.
See Antonin Scalia's strongly worded thoughts about the Texas v Johnson flag-burning case, in which he voted contrary to his personal convictions about the morality of Johnson's actions. Because, ultimately, he knew his vote was not a moral judgment but a legal one.
For those following along at home, when a case is vacated and remanded per the Judgment, what happens from there in a particular case is for the lower courts—SCOTUS opinion in-hand—to decide, if the parties choose not to settle anyway.
EDIT: Also, just as a background again for those following along at home, here is an explanation of the Rogers Test: https://moellerip.com/the-moeller-blog/the-rogers-test-free-...
> Thus was born the Rogers Test, which may only be applied to non-commercial marks, which determines that the title of an artistic work is protected under free speech from the Lanham Act when a) the title of the work has some artistic relevance to the underlying work and b) that the title is not explicitly misleading as to the source of the content of the work.
This is not a good take on the Supreme Court ruling, at all. I generally agree with your rhetoric about IP maximalism, but this is not the right case to trot it out for.
This case was not about whether anyone was confused. The ruling does not take a position on whether there was confusion between Bad Spaniels and Jack Daniels.
Instead, this ruling says that humor is not an absolute defense in trademark disputes. It reverses a Ninth Circuit ruling that held that, in the case of humor, the court does not need to even evaluate whether or not there was confusion.
This ruling sends the case back to the Ninth to evaluate the totality of the case, including fair use, parody, and whether the for-profit Bad Spaniels is appropriating Jack Daniels' trademarks to sell their products in a way that a reasonable person would think Jack Daniels was involved in.
The Ninth may very well find that no, there is no confusion, and the use of the trademark is indeed fair use. But they will have to consider that as a dimension of the dispute, where previously they ruled it was immaterial.
IANAL, and it's possible I've gotten some details wrong here, but IMO this is the right ruling. Just slapping a joke on an otherwise infringing product should not provide immunity from trademark claims.
Kind of read to your comment and didn't bother reading much further, the article is pretty clear when you look for it and the headline is wildly overstating the situation.
Really? I believe that if you put this product in front of 100 average Walmart shoppers (mixed in with other products, some officially-licensed, some not), and asked them which items were "officially licensed", they would likely mostly have believed this toy to be "officially licensed".
Even if someone, somewhere, somehow managed to assume that Jack Daniel's was the entity behind a cute dog toy it still wouldn't hurt them any. It feels like Jack Daniel's is doing far more harm to their own reputation than the dog toy ever would have. I know lawyers love insisting that companies must to defend their trademarks to the death and treat everything that could ever conceivably come close to infringing on a trademark like it were a deadly threat, and I'm sure Jack Daniel's would love to make this toy company pay them excessive licensing fees to keep the product on shelves, but this is just silly.
This is a strawman. Nobody is arguing that this loses Jack Daniels revenue, they're arguing that it waters down their IP and deprives them of the ability to monetize their brand image. Sheesh.
I disagree about the confusion.
1) Trying to answer the question "Is that dog toy sponsored by Jack Daniels?" suggests that there is plenty of confusion here. You have to look and read the toy in question to see that it's not actual Jack Daniel's merchandise.
2) Jack Daniel's must enforce it's trademark or it will lose it.
3) Jack Daniel's are some of the nicest people about enforcing their trademarks. See: https://brokenpianoforpresident.com/2012/07/19/jack-daniels-...
Essentially, the USSC is saying, "judge if this new trademark infringes on Jack Daniel's current trademark based on trademark law." Where the question is not free expression but "are customers likely to think it's a Jack Daniel's affiliated product". The defense the USSC is telling the dog toy people to use is "no reasonable customer would think JD made or authorized these toys".
Now, if they didn't mass produce the product and try to sell it, that would be different. Painted a dog playing with the toy and post that picture on the internet: 1st amendment.
There exists the Rogers Test in trademark law that says that, for an /artistic work/, all a defendant has to do is show that a) the trademark is relevant to the artistic work, and b) the title is not explicitly misleading (to make the audience think the work is created/supported by the trademark holder).
The Rogers Test, reserved for artistic work, is gentler than normal trademark defense. Bad Spaniels chew toy passed this test easily.
The Supreme Court ruled 9-0 that, because the chew toy is released by the Bad Spaniels /brand/, the Rogers /artistic work/ analysis is not appropriate.
Instead, it should be litigated as a brand vs. brand trademark dispute.
In a brand vs. brand dispute, Jack Daniels will have to instead prove that the Bad Spaniels brand is likely to cause confusion with regards to Jack Daniels brand's involvement in the product.
This is a higher bar to clear than Rogers test, because the trademark doesn't have to be explicitly confusing; it just needs to be likely.
I'm not a lawyer or a judge, but I don't think Jack Daniels will prevail even with the stricter standard.
(IMO,) this ruling is barely going to matter in the long run: if the Bad Spaniels chew bottle was sold by Bob's Novelties and did not included the word "brand" after "Bad Spaniels", then the Rogers test would still apply.
That is clearly not Jack Daniels. That clearly looks like Jack Daniels.
I personally would let this product slide, however, if this wasnt a dog toy, but rather liquor... yeah imagine seeing an entire isle of this stuff, it would make it hard to find the Jack Daniels.
Sure, but that wouldn't be a parody - it would be a completely different area of trademark law.
99% of trademark disputes are bourbon makers squabbling over who gets to put an eagle on their bottles, and oat milk makers squabbling over whether it's confusing that both products say 'oat' on them.
Questions of parody are a different area of law - no reasonable consumer could possibly confuse a dog toy with a bottle of whiskey.
That would make perfect sense. The parody product alone is unlikely to be the entire issue. If so, it would make no sense at all, certainly at 9-0.
It does make the whole case a bit of a non-issue.
> Elizabeth Brannen, a partner at Stris & Maher, said Jack Daniel's victory "could turn out to be pyrrhic." The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
> "The likelihood of confusion analysis will still take the challenged product's funny message into account," Brannen said. She noted that the high court said consumers are "not so likely to think that the maker of a mocked product is itself doing the mocking."
Things like the Rogers test are inexact and need rulings themselves, but once that’s sorted out then a lower court knows how to rule.
SCOTUS thought even though the trademark'd company is a different industry, trademark must be dissimilar to another trademark.
If so, parody of trademarks is still ok as long as business identity is not being built on those parodies. The article headline would be incorrect in this case.
Seems like a similar case here.
I took a look at the OmegaMart store, and I'd agree with you in this instance.
But in general, I don't think that just using a distinct brand is enough - it's all about probable customer confusion, which is really something that determined on a case-by-case basis.
The entire point of this ruling was to say that using a distinct brand can be enough. Customers were not confused between a dog toy and a bottle of Jack Daniels. The issue Jack Daniels had was its distinct brand being used to sell something else.
Although this toy is mildly humorous, it looks to me like the main point is to a sell a toy based on its similarity to a well-known brand. I don't think this commercial purpose is really something we need to protect.
When the whole identity of your company is ripping off other products it’s fair to lose.
Nobody said it out loud but I think what they’re really trying to say is this product isn’t art, isn’t anything associated with art. Like Weird Al could write a parody about dogs and make dog toy merch that lifted some trademark and it would be fine. There’s just no protection for an entrepreneur who wants to sell shit by mimicking a trademark.
The Rogers test comes from the 1989 case Rogers vs Grimaldi where a Ginger Rogers sued the defendants for making the flim "Ginger and Fred", saying they used her name and people thought she was involved in the film. The court ruled in favor of the defendants, finding that the film was a work of artistic expression, not a commercial product, an therefore not subject to the Lanham Act. The court used the Rogers test, which states that the use of a third-party mark in an expressive work does not violate the Lanham Act “Unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title misleads as to the source or the content of the work.”
Since then the Rogers test has been used rather inconsistently by various courts. In Cliff Notes vs Bantam, the defendant was selling books that parodied cliff notes, and used their distinctive black and yellow trade dress. The court ruled for the defendant, saying Rogers test applied because the defendant's use did not create a strong likelihood of confusion, ignoring the artistic relevance part of the Rogers test. Other courts have required a "particularly compelling" likelihood of confusion and have generally favored artistic expression, though not always.
(https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?refer...)
The article argues that this is a reversal of a long standing clear precedent. But the precedent is not really clear. Various courts have struggled to determine whether a product was "artistically relevant" and whether consumers would be confused as to whether the paordied product was sponsored or created by the original since the Rogers case. And they have applied the precedent somewhat inconsistently that whole time. This is just one case where the court has ruled for the plaintif.
It's a supreme court case that happened last week - that's news.
I wonder what Weird Al Yankovic has anything to say about this ruling?
> 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.
> "If Chik-Fil-Hate were also on the inside of the shirt on the tag, that would be more of a trademark use," Roberts said.
Seems reasonable. It's ok for a product to identify itself as product X making a statement Y. Y can use trademarks, but X cannot.
In this case, the bottle is designed to look like a Jack Daniels bottle. If they put a visible, small yellow label at the top stating "Parody Gifts" then the rest of the design would be fine because it clearly discloses the bottle is not from Jack.
It seems like a fine point within trademark law. It maybe sorta kinda has implications for parody speech? But even there, it doesn't seem like a major threat to parody speech unless I'm missing something.
That is to say regardless of how funny or not funny someone may find my starting a “Microshit Software” company, if I start aping and using Microsoft’s trade dress in selling my own products under the Microshit brand, it is the fact that I am aping another brand means I don’t get to claim “artistic expression” to avoid answering a trademark dispute. We have to actually resolve the trademark conflict because I am using the parody elements as a brand.
Shorter read than most opinions. Contains some great quotes, considering the two products...
Kagan opens the opinion with the line: "This case is about dog toys and whiskey, two items seldom appearing in the same sentence.", which I found amusing.
I was curious what the Rogers Test was, so I looked it up. I'm glad they agreed it doesn't apply here but sets a question as to what it even does apply to.
> At the trial, Rogers offered evidence in the form of a survey that showed 43% of individuals exposed to the title of the film associated it with her
That association seems to be the point of parody and satire. This metric is also easily hacked. Funny enough, The Onion wrote a brief to the Supreme Court not too long ago over a satire case, stating that fooling people is what makes satire work[0,1]. Doing so... satirically of course.
[0](Legal Eagle) https://www.youtube.com/watch?v=LxTWonQvXkw
[1] (Brief) https://www.supremecourt.gov/DocketPDF/22/22-293/242292/2022...