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ARTICLE · 16 JUNE 2023

Supreme Court Limits The Rogers Test

Buchanan Ingersoll & Rooney
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On June 8, 2023, in a unanimous decision, the Supreme Court provided guidance on the narrow applicability of the Rogers test in the trademark context and rejected the Ninth Circuit's broad...

United StatesIntellectual Property
Bassam Ibrahim
Bassam Ibrahim
Erin Napoleon
Erin Napoleon
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On June 8, 2023, in a unanimous decision, the Supreme Court provided guidance on the narrow applicability of the Rogers test in the trademark context and rejected the Ninth Circuit's broad application of the Rogers test to expressive marks.

Applicability of Rogers Test

VIP Products sells dog toys, many of which are designed to look like and parody popular beverage brands. In 2014, VIP added the Bad Spaniels toy, created to parody and evoke the distinct Jack Daniel's bottle, to its collection. The toy mimicked the Jack Daniel's label by replacing "Old No. 7" with "Old No. 2" and "Tennessee Sour Mash" with "On Your Tennessee Carpet." Shortly after marketing the Bad Spaniels toy, Jack Daniel's sent VIP a demand letter and VIP responded by bringing a declaratory judgement suit.

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