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

March 22, 2023 – Media Mention

Barry Werbin, counsel in Herrick's Intellectual Property Group, spoke to IPWatchdog about yesterday's Supreme Court argument in Jack Daniel’s v. VIP Products. The question before the Court is "whether the First Amendment protects VIP Products, LLC, a maker of dog poop-themed toys that made humorous use of Jack Daniel’s trademarks for commercial purposes, against claims of infringement and dilution."

Weighing in on the arguments, Barry explained that the Justices “likely may be seeking a middle ground by applying traditional likelihood of confusion factors to parodic works but placing more or less weight on specific factors in the context of parodic goods.” Barry further discussed the arguments made by counsel for Jack Daniels, who noted that “non-commercial’ speech does not involve buying and selling and should be so limited to that scenario” and further “denounced the government’s refusal to affirmatively support the USPTO’s historical assessment of parody under the likelihood of confusion factors, with no special exception for parody.”

Read the full article in IPWatchdog here.