Volume 599 U. S. Part 1 Pages 140–165

OFFICIAL REPORTS OF

THE SUPREME COURT June 8, 2023

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. 140 OCTOBER TERM, 2022

Syllabus

JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC certiorari to the united states court of appeals for the ninth circuit No. 22–148. Argued March 22, 2023—Decided June 8, 2023 The Lanham Act, the core federal trademark statute, defnes a trademark by its primary function: identifying a product's source and distinguish- ing that source from others. In serving that function, trademarks help consumers select the products they want to purchase (or avoid) and help producers reap the fnancial rewards associated with a product's good reputation. To help protect trademarks, the Lanham Act creates fed- eral causes of action for trademark infringement and trademark dilu- tion. In a typical infringement case, the question is whether the de- fendant's use of a mark is “likely to cause confusion, or to cause mistake, or to deceive.” 15 U. S. C. §§ 1114(1)(A), 1125(a)(1)(A). In a typical di- lution case, the question is whether the defendant “harm[ed] the reputa- tion” of a famous trademark. §§ 1125(c)(2)(A), (C). Page Proof Pending Publication Respondent VIP Products makes a squeaky, chewable dog toy de- signed to look like a bottle of Jack Daniel's whiskey. But not entirely. On the toy, for example, the words “Jack Daniel's” become “Bad Span- iels.” And “Old No. 7 Brand Tennessee Sour Mash Whiskey” turns into “The Old No. 2 On Your Tennessee Carpet.” These jokes did not im- press petitioner Jack Daniel's Properties, which owns trademarks in the distinctive Jack Daniel's bottle and in many of the words and graphics on its label. Soon after the Bad Spaniels toy hit the market, Jack Daniel's de- manded that VIP stop selling it. VIP fled suit, seeking a declaratory judgment that Bad Spaniels neither infringed nor diluted Jack Daniel's trademarks. Jack Daniel's counterclaimed for infringement and dilu- tion. At summary judgment, VIP argued that Jack Daniel's infringe- ment claim failed under the so-called Rogers test—a threshold test developed by the Second Circuit and designed to protect First Amendment interests in the trademark context. See Rogers v. Gri- maldi, 875 F. 2d 994. When “expressive works” are involved, VIP con- tended, that test requires dismissal of an infringement claim at the out- set unless the complainant can show either (1) that the challenged use of a mark “has no artistic relevance to the underlying work” or (2) that it “explicitly misleads as to the source or the content of the work.” Id., at 999. Because Jack Daniel's could not make that showing, VIP Cite as: 599 U. S. 140 (2023) 141

Syllabus

claimed, the Lanham Act's statutory “likelihood of confusion” standard became irrelevant. And as for the dilution claim, VIP urged that Jack Daniel's could not succeed because Bad Spaniels was a parody of Jack Daniel's and therefore made “fair use” of its famous marks. § 1125(c)(3)(A)(ii). The District Court rejected both of VIP's contentions for a common reason: because VIP had used the cribbed Jack Daniel's features as trademarks—i. e., to identify the source of its own products. As the District Court saw it, w