"By now, most IP practitioners are familiar with the U.S. Supreme Court's ruling in June 2023 in Jack Daniel's Properties, Inc. v. VIP Products, Inc. The highly publicized ruling came after almost a decade of litigation between the parties over VIP's 'Bad Spaniels' parody dog toy designed to mimic a bottle of Jack Daniel's."
"The Court held that VIP had no defense to either cause of action. The Court ruled that both defenses require that the defendant used the at-issue mark in a non-trademark manner. VIP could not claim non-trademark use, according to the Court, because the spoofed Jack Daniel's marks served a trademark function even in a mock sense."
"To date, scholars have tended to focus on the ruling's impact on infringement claims- opining that the impact on defendants might not be so drastic because absence of likelihood of confusion could be the savior for creative trademark uses that had previously been dismissible under fair use."
"The litigation that has unfolded in the past year foretells the downstream implications of the Supreme Court ruling, particularly for trademark dilution law. This could very well be the next battleground for free speech in the trademark context."
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