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The First Amendment and the Lanham Act At the Supreme Court
In March, the Supreme Court heard a blockbuster trademark case with significant implications for trademark law. After argument, reversal seems likely as questioning from the justices suggests that a long-standing precedent is unlikely to survive unscathed. But the Court also indicated concern over the broader implications of this case in the arts, entertainment, and publishing. Significant uncertainty remains regarding how the justices will resolve these tensions. The Court could avoid deciding the First Amendment issue, keep portions of Rogers, abrogate it entirely, or suggest another path. Throughout argument, the justices signaled multiple different — and sometimes competing — potential tests. Here's what you need to know about Jack Daniel's v. VIP Products.
The Dispute
At issue is an alleged parody product made by VIP Products called "Bad Spaniels," shown in the image below next to a bottle of Jack Daniel's whiskey.
Although it looks like a bottle of Jack Daniel's, Bad Spaniels is not a bottle of anything. It's a dog toy. The Bad Spaniels "label" contains poop jokes: Jack Daniel's alcohol-by-volume content is replaced by "43% POO BY VOL." and Jack Daniel's "OLD NO. 7" trademark is replaced with "The Old No. 2… on your Tennessee Carpet." The shapes of the two objects are substantially similar, as are the products' names and the design of the twirling white lines called filigree. To Jack Daniel's, this wasn't a joke. So it sued Bad Spaniel's maker — VIP Products — for trademark infringement and trademark dilution under the Lanham Act.
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