The Bottom Line

• The U.S. Supreme Court recently decided that, when using another’s trademark “as a designation of source for the infringer’s own goods,” one is not entitled to a First Amendment defense even if the use is a parody.
• While the decision leaves intact existing legal protections for the use of trademarks and trade dress in expressive works, it limits its applicability when the mark functions as a source identifier.
• Future cases addressing a parody or humorous use of another’s mark will likely see an increased focus on what constitutes a “source-identifying” use, and whether the use is likely to cause confusion among consumers.