Jean-Paul Ciardullo Comments on Oral Arguments in Jack Daniel’s v. VIP Products

Foley & Lardner LLP Partner Jean-Paul Ciardullo is quoted in the Managing IP article, “Jack Daniel’s SCOTUS hearing leaves counsel swaying,” discussing the trade dress battle between the whiskey brand and a dog toy company at the U.S. Supreme Court.

The court examined whether dog toys made with the whiskey maker’s trade dress should be subject to the same standard of confusion analysis as other products under the Lanham Act, which protects trademark owners against the use of similar marks if such use is likely to result in consumer confusion, or if the toys should receive first amendment protection as an expressive work.

Ciardullo said the court might incorporate some kind of enhanced analysis of parody as part of the traditional multi-factor test for liability, and limit the widely used Rogers test so it doesn’t apply to cases like this.