Foley & Lardner LLP Partner Jean-Paul Ciardullo is quoted in the Law360 article, “Justices Narrow TM Infringement Carveouts For Parody,” discussing the U.S. Supreme Court’s recent decision in Jack Daniels Properties, Inc. v. VIP Products LLC.
Ciardullo said that what exactly parody product companies will need to do to make their source clear is something that will likely play out in future litigation on a case-by-case basis.
"I think this decision is in line with what many people may have expected: that there was not going to be a broad embrace of the Rogers test," Ciardullo noted. The Rogers test is commonly applied in trademark law and states that the use of a third-party mark in an expressive work does not violate the Lanham Act, the main federal trademark statute in the United States.
"That would open the door to too many potential abuses of people's trademarks and a lot of litigation and a lot of judgment calls made by judges about what constitutes an expressive work," he added.