The Supreme Court’s interference in trademark law is confusing and causes heaps of legal uncertainty.

That is, until earlier this year, when everything changed. In June of 2023, the Supreme Court’s holding in Jack Daniel’s Properties, Inc. v. VIP Products LLC took the world of trademark law by surprise. The Jack Daniel’s case, commonly referred to as the ‘Bad Spaniels’ case, in effect declined to apply the Rogers test under similar circumstances, reasoning that Rogers does not apply where “the challenged use of a mark is as a mark.” The implications of the Supreme Court’s perplexing and somewhat staggering decision in the ‘Bad Spaniels’ case has now created vast legal uncertainty for both major intellectual property (“IP”) owners and creatives alike. Creatives continue to offer free-expression arguments in crafting parodies and satires (e.g., the ‘Bad Spaniels’ dog chew-toy poking fun at the widely recognized whiskey company) to justify the alleged fair use of another’s mark. In stark contrast, IP owners have, unsurprisingly, taken the position that even parodic uses of their mark, as a mark, are in violation of the Lanham Act, thus constituting trademark infringement. Certain trademark owners, however, have taken another route to promoting success of their mark in commerce: teaming up with creatives and licensing their IP rights to effectively engage in self-parody of their own brand. A recent example of such a tactic is demonstrated by the Mattel-sponsored blockbuster film Barbie (2023) from director and screenwriter, Greta Gerwig.12 For now, one thing remains clear: navigation of these now-choppy waters of evolving trademark law requires a closer look at the rationale behind the Supreme Court’s ‘Bad Spaniels’ ruling and the doubts cast upon the continued viability of the Rogers test in the field of trademark infringement cases.