![]() ![]() What’s worse, even non-source-identifying expression may be harmed if a court gets it wrong or if the burden of disputing this question chills lawful expression. But when the Supreme Court granted review in Jack Daniel’s, the Ninth Circuit put enforcement of its decision on hold pending the outcome of this case. ![]() The Ninth Circuit initially issued an opinion agreeing with us. Moreover, the First Amendment stakes are always higher in trademark cases involving expressive works because a ruling can result in the elimination of information and ideas from the public sphere. As we explained in an amicus brief we filed in a Ninth Circuit case about a news outlet’s use of the name “Punchbowl News,” source-identifying terms may also be important components of a speaker’s expression. One problem is that First Amendment interests may warrant heightened protection even for source identifiers when they’re attached to expressive works. Still, we do have concerns about how the Court ruled. We’re relieved that the Rogers test remains mostly intact, and we’d like to think that our amicus brief on the social importance of expressive trademark uses and the Rogers test helped persuade the Court to keep its holding narrow. If you’re not using the trademark as a source identifier at all, though, the Rogers test may still apply to any infringement claim against you. In the Court’s view, using someone else’s trademark (or a modified version of it) to designate the source of your own goods “falls within the heartland of trademark law” and therefore does not merit heightened First Amendment protection, even if you’re also using it to convey some other message. The law regulates the use of trademarks so that consumers can confidently rely on their associations between trademark, source, and experience. ![]() Trademark law rests on the assumption that knowing who made your cookies (or dog toy, or whiskey) helps you decide what to buy. On that same package, you might also see the words “chocolate sandwich cookies.” That gives you some information about what’s inside, but it doesn’t tell you anything about who made the cookies-so that phrase is not functioning as a trademark. For example, when you see the word “Oreo” on a package of cookies, you know those cookies came from the same company as every other pack of Oreo cookies. Instead, it ruled against VIP on narrower grounds, holding that Rogers’ heightened First Amendment protections didn’t apply because VIP was using “Bad Spaniels” as a trademark of its own-that is, to identify the source of the product.Īs the Court explained, the defining characteristic of a trademark is that it signals the source of a good or service to consumers. The good news is that the Court didn’t reject the Rogers test, nor did it change the test itself. Activists, artists, and regular internet users frequently use trademarks for expressive purposes, and the Rogers test provides important protection from legal threats. Novelty dog toys aren’t exactly our usual focus at EFF, but this case was an important one because the Supreme Court had never ruled on whether the Rogers test is valid at all. The main question before the Court was whether the Rogers test-a special test for trademark infringement that’s more protective of free expression-should be applied to VIP’s parody of Jack Daniel’s trademarks for a “Bad Spaniels” dog toy. VIP Products, a trademark case we weighed in on in an amicus brief. Supreme Court issued a decision Thursday in Jack Daniel’s Properties v. All of this came to a head in a case about a dog toy. But that means the public is often in the dark about how their First Amendment rights stack up to the censoring power of trademark rights. Many of the world’s largest and most powerful companies are fanatical about their trademarks. The question of when you can use a trademark is one we see all the time-and one that is often misunderstood. ![]()
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