Is Trademark Protection Going to the Dogs?

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The Supreme Court is set to hear oral argument in VIP Prods. LLC v. Jack Daniel’s Properties, Inc., a case that asks whether that VIP’s “Bad Spaniels” dog toy whimsically mimicking the appearance of a Jack Daniels whisky bottle is protected expression under the First Amendment. The case follows a long and uncertain line of parody products cases, and, by tying the defense of such cases to the First Amendment, has the potential to undo almost entirely the rights of brand owners to limit such mischievous marketing practices. 

Jonathan Moskin and Ashley Koley of Foley & Lardner trace key points in the history of the law of fair use from its origins in the Supreme Court 100 years ago to its present somewhat muddied state, and turn to the horizon to offer insights into where the Supreme Court might bring some clarity going forward.

 

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