Narrow ‘Bad Spaniels’ Ruling Leaves Wiggle Room for Lower Courts

US Supreme Court unanimity in a Jack Daniel’s Properties Inc. win over a dog toy maker belies the way two concurrences and a footnote pull the narrow opinion in different, broader directions.

A test generally excusing unauthorized trademark use in “expressive works” shouldn’t apply when allegedly infringed trademarks are used as trademarks—to help identify the source of a product—as VIP Products LLC did with their dog toy, the high court held on June 8. That sends the case back to lower courts to decide whether a Jack Daniel’s bottle-shaped, pun-laden chew toy would likely infringe Jack Daniel’s trademark rights ...