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Dog Toys and Whiskey: Jack Daniel's v. VIP Products Update

A recent opinion by the U.S. Supreme Court held that “when an alleged infringer uses a trademark as a designation of source for the infringer’s own goods, the Rogers test does not apply” and remanded the issue of trademark infringement back to the lower court, as well as the dilution claim given that the Ninth Circuit misread Section 1125 of the Lanham Act. 

However, the Rogers test, which was designed in the Second Circuit to protect First Amendment interests in the trademark context, was not abolished and the Court took no position on it, nor in resolving the long-standing split between the Second and Ninth circuits that has, for years, given plaintiffs pause in determining a favorable venue. 

In this Trademark Lawyer article, Douglas Masters, managing partner of Loeb & Loeb’s Chicago office and associate Emily Borich, examine the Supreme Court’s use of the Rogers test in the trademark infringement and dilution claims against VIP Products for selling the dog toy, “Bad Spaniels” which resembles Jack Daniel’s whiskey bottle. 

To read the full article, please visit The Trademark Lawyer’s website