SCOTUS Skeptical that Bad Spaniels Is Parody, but Questions Need to Overturn Rogers

The US Supreme Court heard oral arguments in the Jack Daniel’s v. VIP Products case on March 22. Justices suggested that there may be a different way of resolving the case than either party suggested, however, contemplated the need to overturn the Second Circuit’s test in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which some of the Justices characterized as injecting unnecessary confusion.

Finnegan partner Mark Sommers explained to IPWatchDog that “the contention that Rogers is prerequisite or ‘screen’ before reaching the Lanham Act, that argument seemed to carry little sway. Simply street-smarts governed many exchanges, as irrespective of the expressive use at issue, if it creates consumer confusion, then it is not protected speech. Talk of remand also permeated the hearing, suggesting that the Supremes might remand the case directing the trial court to determine if the adequate weight was given to the parodic nature of the product within the existing framework of AMF Inc. v. Sleekcraft Boats (9^th Cir. 1985) factors, as urged by the U.S. government.” Mark also reiterated that the Justices “did not seem to buy that the product at issue was non-commercial.”

Read “SCOTUS Skeptical that Bad Spaniels is Parody, But Questions Need to Overturn Rogers”