A trademark dispute between a liquor company and a maker of novelty dog toys may not sound like an important First Amendment battleground, but the latest trademark case to come before the U.S. Supreme Court could have serious consequences for online speech and political activism. Trademarks are part of our modern lexicon, and we cannot allow their owners to use the law as a censorship tool.
In Jack Daniel’s Properties v. VIP Products, Jack Daniels claims that a company infringed and diluted its trademarks by selling a parody dog toy that looks like a Jack Daniels whiskey bottle and has punny text like “BAD SPANIELS – 43% POO BY VOL.” The Ninth Circuit held that the defendant’s use of Jack Daniels’s trademarks was “expressive,” requiring application of what’s known as the Rogers test. Jack Daniels is now asking the Supreme Court to take the extreme position that no special test should apply to expressive uses of trademarks at all, essentially arguing that there’s no need to consider whether forbidding a trademark use would deprive someone of their First Amendment rights. We filed an amicus brief urging the Court to reject that argument, explaining why and how the law must protect our ability to use trademarks to critique and comment on their owners and the things they represent.
In most trademark cases, courts apply a set of six to ten factors meant to assess the likelihood that consumers will be confused—things like how well-known the plaintiff’s trademark is and how similar the plaintiff’s and defendant’s uses are. That’s consistent with the consumer protection purpose of trademark law: trademarks provide information about goods and services, so the law polices their use to prevent people from thinking they’re buying one thing but actually getting another.
But there are a few problems with applying this standard test to parodies or other expressive uses of trademarks—i.e., cases where a trademark is being used to communicate something other than the source of a product. First, the test treats avoiding confusion as the only goal, without recognizing a competing interest in free expression. Second, certain factors may be unhelpful or awkward to apply to expressive uses, or lead
[…]
Content was cut in order to protect the source.Please visit the source for the rest of the article.
Read the original article: