Panko Quoted on SCOTUS Oral Arguments in Jack Daniel’s v. VIP

Managing IP
Partner Ross Panko was quoted on the US Supreme Court oral arguments in Jack Daniel's v. VIP Products, which will decide if dog toys using the Jack Daniel’s trade dress and the words “Bad Spaniels” are protected under the First Amendment as expressive works, as determined by the Rogers test, or if instead they are unlawful under the Lanham Act.

Ross said that some of the justices seemed to question the use of the Rogers test and noted that Justice Elena Kagan’s comments suggested she was considering whether the traditional likelihood of confusion test may be sufficient.

“I’m encouraged by some of the questioning because they seem to be acknowledging that Rogers isn’t a good fit for analysis of a parodic work,” he said.

Ross added that a likelihood of confusion analysis should be sufficient in cases involving creative expression because, if a parody is effective, it shouldn’t cause confusion.

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