Supreme Court Rules in Favor of Jack Daniel’s Over ‘Spoofed’ Bad Spaniels Dog Toy

The Second Circuit’s 1989 Rogers test sets an elevated standard for proving trademark infringement, for the purpose of protecting First Amendment interests, when a trademark is used in “works of artistic expression.” Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). Where the Rogers test applies, the unauthorized use of a trademark can give rise to an infringement claim only if (1) the trademark has “no artistic relevance” to the accused work or (2) in the case of artistic relevance, the accused work’s use of the trademark “explicitly misleads as to the source or the content of the work.” Id. at 999. Where applicable, the Rogers test is a powerful defense against claims of trademark infringement and dilution.