Hot Topics in Copyright, Trademark and Trade Dress: Notable Intellectual Property Cases in U.S. Courts

[...]of advances in technology, evolving business practices, and an increase in corporate global expansion, intellectual property continues to be a central and dynamic field of law. The Supreme Court considered: (i) Whether humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's likelihood-of-confusion analysis, or instead entitled to heightened First Amendment protection;1 (ii) Whether humorous use of another's mark as one's own on a commercial product is "noncommercial" and thus bars as a matter of law a claim of dilution by tarnishment under the Lanham Act;2 (iii)What is the proper test for whether a work is "transformative" under the first factor of the Copyright Act's fair use doctrine: purpose and character;3 and (iv) Whether and to what extent the federal trademark statute, known as the Lanham Act, applies to infringing conduct that takes place outside the United States.4 jack Daniel's Properties v. VIP Products LLO Jack Daniel's (Jack Daniel's) is a well-known and popular brand of Tennessee whiskey produced in Lynchburg,Tennessee by the Jack Daniel's Distillery. "10 On remand, the district court, applying the Rogers test, held that Jack Daniel's failed to show lack of artistic relevance or explicitly misleading statements, so VIP Product's use was entitled to First Amendment protection.11 The Supreme Court granted certiorari and considered: (i) whether the humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's likelihood-of-con-fusion analysis,12 or instead entitled to heightened First Amendment protection under the Rogers test, and (ii) whether humorous use of another's mark as one's own on a commercial product is "noncommercial" and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.13 On March 21, 2023 the Supreme Court heard oral argument, whereby VIP Products maintained its position that the dog toys do not violate the Lanham act as they are a parody and that First Amendment protection shields the company from liability14 Meanwhile, Jack Daniel's argued that the dog toys, despite the parody, nevertheless cause consumer confusion and as such infringe Jack Daniel's trademarks.15 Jack Daniel's further argued that the Ninth Circuit erred in holding thatVIP's use was noncommercial because it was humorous, and instead should have applied the parody exemption. The district court granted summary judgem