Reaction: SCOTUS Jack Daniel’s Ruling Could Spark Survey Fights

Counsel say that the U.S. Supreme Court’s ruling in Jack Daniel’s v. VIP Products may result in conflicts focused on source identification and survey methodology. The court unanimously ruled in favor of Jack Daniel’s, citing that the Rogers test didn’t apply to dog toys that used the whiskey company’s trade dress.

Finnegan partner Mark Sommers told Managing IP that [Justice Sonia] Sotomayor and [Justice Samuel] Alito’s concurrence could be cited by practitioners in future disputes to cast doubt on survey results.

“I thought the concurrence was insightful. How surveys are used and how they are framed in the future will certainly be impacted by that concurrence.”

He adds that Sotomayor’s opinion could spur litigators to raise more Daubert motions, which seek to exclude the presentation of evidence to a jury, in response to opponents’ surveys.

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