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Warren Braunig and Samuel Koenig Discuss Parody Products and Trademark Law with The Recorder

The Recorder

Keker, Van Nest & Peters partner Warren Braunig and Harvard Law School student Samuel Koenig discuss the ramifications of the recent Supreme Court ruling in Jack Daniel's Properties v. VIP Products. VIP Products sells a line of dog toys designed to resemble the Jack Daniel's liquor bottles with "dog-related twists." Jack Daniel’s demanded VIP stop selling the dog toy and brought counterclaims for trademark infringement and dilution, after VIP pursued a declaratory judgment that the toy was non-infringing.

Almost nine years after the U.S. Court of Appeals for the Ninth Circuit ruled that the toy was protected by the First Amendment under the Rogers test, the Supreme Court has decided that parody trademarks do not receive First Amendment protection when they function as trademarks. The court continued to reverse the dilution claim after rejecting the Ninth Circuit’s analysis that a commercially sold product could fit within the “non-commercial” exception under certain parameters.

Braunig and Koenig discuss the implications for parody and other expressive uses of trademarks as a result of the ruling.

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