The question of when you can use a trademark is one we see all the time—and one that is often misunderstood. Many of the world’s largest and most powerful companies are fanatical about their trademarks. 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. All of this came to a head in a case about a dog toy.
The U.S. Supreme Court issued a decision Thursday in Jack Daniel’s Properties v. VIP Products, a trademark case we weighed in on in an amicus brief. 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. 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. Activists, artists, and regular internet users frequently use trademarks for expressive purposes, and the Rogers test provides important protection from legal threats.
The good news is that the Court didn’t reject the Rogers test, nor did it change the test itself. 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.
As the Court explained, the defining characteristic of a trademark is that it signals the source of a good or service to consumers. 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. That makes “Oreo” a trademark. 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 n
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