The US Supreme Court recently ruled that the Rogers test, used to identify whether the unauthorized use of a trademark has artistic relevance, is not an applicable test when an alleged infringer is using another entity’s trademark as or within the infringer’s mark. This ruling comes from an appeal by Jack Daniel’s to be able to sue the owner of the spoof dog toys “Bad Spaniels,” for trademark infringement.
Bloomberg and Eric Perrott discussed the effect the Supreme Court ruling will have on trademark law.
Trademark attorney Eric Perrott of Gerben Perrott, PLLC said courts are now going to argue about “when is something just kind of something stuck on the front of a t-shirt or on the front of the dog toy, and when is it a trademark.”
Trade dress—such as shapes of bottles like Jack Daniel’s—will be “part of the next battleground,” he said. The “next thing people will try to unpack here” is when someone using elements of trade dress is “trying to adapt it” as its own source identifier, or just using it in a non-source-identifying manner, he said.
Source: Jahner, Kyle and Setty, Riddhi. https://news.bloomberglaw.com. “Jack Daniel’s High Court Win Leaves Trademark ‘Rogers Test’ Hazy”. 9 June 2023.