The Ninth Circuit directed the District Court to consider Rogers on remand. Rogers is a 1989 decision that stands for the proposition that expressive works like books, movies and television shows should be able to use trademarks freely (in accordance with the First Amendment), so long as there is some relationship to the story being told. The Ninth Circuit reversed, finding that the dog toy was an “expressive work” that must be examined under the standard set forth in Rogers v. VIP Products appealed the decision to the Court of Appeals for the Ninth Circuit. ‘Likelihood of confusion’ is the touchstone of trademark infringement, and so the Court found that VIP Products had infringed upon Jack Daniel’s trademark rights. After a 2017 bench trial, the District Court found in favor of Jack Daniel’s, and held that consumers were likely to be confused about the source of the dog toy. After that, the parties were in litigation in Federal District Court in Arizona (where VIP Products is based). As you might expect, a cease and desist letter from Jack Daniel’s soon followed. The dispute began back in 2014, when VIP Products introduced the ‘Bad Spaniels’ dog toy. So when a company called VIP Products put out a squeaky dog toy resembling the Jack Daniel’s bottle, what were people to assume? That Jack Daniel’s licensed the dog toy? Or, that the toy was an unlicensed parody? Believe it or not, this issue made it all the way to the Supreme Court. And there is little doubt that some of those followers are dog owners. The Jack Daniel’s brand of whiskey, which is made in a dry county in Tennessee, has a large and devoted following. When Chris Stapleton sings “You’re as sweet as Tennessee Whiskey…” we all know what he’s talking about, even though he never mentions the particular whiskey by name. The Supreme Court disagreed, holding that the Rogers test for First Amendment ‘fair use’ is only applicable in a small number of cases, cases that do not involve the use of another’s trademark “as a designation of source for the infringer’s own goods…”.2020)) that VIP Products’ sales of a dog toy resembling Jack Daniel’s whiskey bottle was a permissible ‘fair use’ of trademarks under the First Amendment. Jack Daniel’s Properties, Inc., 953 F.3d 1170(9th Cir. The Ninth Circuit previously found (in VIP Products LLC v., 2023 WL 3872519, reversing VIP Products’ victory in a trademark case against Jack Daniel’s, and remanding to the Arizona District Court for further proceedings. On June 8, 2023, the Supreme Court issued a unanimous decision in Jack Daniel’s Properties, Inc.
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