No First Amendment Right To Confuse Consumers, High Court Holds

Today, in a unanimous decision, the Supreme Court held that the First Amendment will not protect an infringers' use of a confusingly similar trademark for its goods – even if it is a humorous parody. Justice Kagan writing for the Court held that the First Amendment does not give infringers license to trade on the goodwill or dilute the trademark of a brand owner under the guise of free expression. This "narrow" opinion, however, does not comment on whether and when use of a confusingly similar mark as something other than a source identifier, is protected expression under the First Amendment.

The facts at issue in this case are pretty straightforward: VIP Products LLC make dog toys modeled after famous alcoholic beverage bottles and labels. Jack Daniels Properties, Inc. makes, well, Jack Daniels whiskey. This case arose out of VIP's sale of a squeaky dog toy called "Bad Spaniels" that was modeled after the renowned Jack Daniels bottle.