SCOTUS Asked to Balance First Amendment and Confusion in Jack Daniel's Dispute

During the nearly hour and a half of oral arguments for the Jack Daniels v. VIP Products case, the U.S. Supreme Court grappled with questions relating to the limits of commercial speech. The case involves a dog toy that parodies the famous whiskey bottle.

The National Law Journal interviewed Finnegan partner, Mark Sommers where he said, “This is always a difficult issue in trying to find what the appropriate test is going to be both as a client and a mark holder.”

The Second Circuit Court of Appeals decision in Rogers v. Grimaldi developed the Rogers test to protect expressive works generally.

Mark said the Rogers test was inconsistently applied and any clearer guidance from the high court would be welcomed. He added, “We can use all the help we can get.”

Further, he was inclined to see the court going with the government’s argument, handled by Assistant Solicitor General Matthew Guarnieri, to remand the dispute back to the lower court with the “parodic nature” of the claim in mind.

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