Bloomberg Law
Jan. 19, 2023, 11:32 PM

Jack Daniel’s Backers Ask Justices to Curb Trademark-in-Art Test

Kyle Jahner
Kyle Jahner
IP Reporter

Briefs backing Jack Daniel’s bid to reverse a loss to a dog toy poured into the US Supreme Court Wednesday, urging the justices to restrain—and in the case of the US government, eliminate—a free speech test that can short-circuit trademark claims.

Intellectual property groups, academics, industries, and brands want the court to at least limit application of the Rogers test’s low bar for allowing the unauthorized use of marks in expressive works. Their friend-of-the-court briefs argued the test, which grants “artistically relevant” marks a First Amendment shield as long as they aren’t explicitly misleading, has wrongly been applied well beyond ...