Rogers, Jack Daniel's, and the Trademark Parody Problem
By Casey Scott McKay ·
This article explains how American trademark law handles parody, criticism, and other expressive uses of someone else's brand, from the Second Circuit's 1989 decision in Rogers v. Grimaldi through the Supreme Court's 2023 decision in Jack Daniel's Properties v. VIP Products. It traces the artistic-relevance test from movie titles to song lyrics, video games, paintings, greeting cards, and dog toys, and shows how Jack Daniel's cut that expansion off at the point where the accused designation is used as a source identifier. It then works through what is left: parody as a factor inside the ordinary likelihood-of-confusion analysis, and the shape of dilution by blurring and tarnishment after the statutory exclusions in 15 U.S.C. 1125(c)(3). It covers the separate First Amendment line of cases governing registration bars in Matal, Brunetti, and Elster. Along the way it maps the recurring fact patterns, the surviving circuit variations, and the procedural consequences of losing an early exit from litigation. It closes by naming the questions the Supreme Court deliberately left open, including whether Rogers is correct at all, what counts as source-identifying use for titles and digital goods, and whether tarnishment can survive a viewpoint-discrimination challenge.
IP and Technology > Trademarks | Article | Published 30 April 2026 - Updated 2 July 2026 | Casey Scott McKay - marksy.us
Summary. This article explains how American trademark law handles parody, criticism, and other expressive uses of someone else's brand, from the Second Circuit's 1989 decision in Rogers v. Grimaldi through the Supreme Court's 2023 decision in Jack Daniel's Properties v. VIP Products. It traces the artistic-relevance test from movie titles to song lyrics, video games, paintings, greeting cards, and dog toys, and shows how Jack Daniel's cut that expansion off at the point where the accused designation is used as a source identifier. It then works through what is left: parody as a factor inside the ordinary likelihood-of-confusion analysis, the shape of dilution by blurring and tarnishment after the statutory exclusions in 15 U.S.C. § 1125(c)(3), and the separate First Amendment line of cases governing registration bars in Matal v. Tam, Iancu v. Brunetti, and Vidal v. Elster. Along the way it maps the recurring fact patterns, the surviving circuit variations, and the procedural consequences of losing an early exit from litigation. It closes by naming the questions the Supreme Court deliberately left open, including whether Rogers is correct at all, what counts as source-identifying use for titles and digital goods, and whether tarnishment can survive a viewpoint-discrimination challenge.
Keywords: rogers v. grimaldi · artistic relevance test · jack daniel's v. vip products · bad spaniels · trademark parody · source identifier · expressive works · first amendment trademark · louis vuitton haute diggity dog · chewy vuiton · dilution by tarnishment · noncommercial use exclusion · matal v. tam · iancu v. brunetti · vidal v. elster · likelihood of confusion · explicitly misleading · lanham act section 43(c)
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