Jack Daniel’s High Court Win Leaves Trademark ‘Rogers Test’ Hazy

Jack Daniel’s Properties Inc. convinced the US Supreme Court to barricade one path to a test for trademarks in expressive works, even as the justices declined to ax the test itself.

A unanimous court said the Rogers test doesn’t apply to unlicensed use of a trademark to help identify a product’s source—to using “another’s trademark as a trademark.” But the high court declined to reject—or even opine on—the widely adopted standard as it rejected the Ninth Circuit’s use of the test to clear VIP Products LLC’s Bad Spaniels dog toy of trademark infringement.

The result will allow brand owners to ...