Parody & Source Identification

Applying Jack Daniel's When Parody Defendants Use Marks as Source Identifiers

When an alleged infringer uses a trademark as a designation of source for the infringer's own goods, the Rogers threshold test does not apply; the standard likelihood-of-confusion inquiry does the work instead. Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). A trademark's expressive message—"particularly a parodic one"—may properly figure in that assessment, because a successful parody that conjures up the original while creating clear contrasts "is not often likely to create confusion." Source-identifying use carries a second consequence as well: the Lanham Act's noncommercial-use exclusion from dilution liability does not shield parody, criticism, or commentary when the mark is used to designate source.

The Second Circuit gave the rule immediate effect. MSCHF's Wavy Baby sneakers used Vans' marks and trade dress as source identifiers, so no special First Amendment protections applied and the preliminary injunction against the shoes was affirmed. Vans, Inc. v. MSCHF Product Studio, Inc., 88 F.4th 125 (2d Cir. 2023). The panel weighed the parodic message within the standard Polaroid analysis yet still found Vans likely to prevail on confusion, stressing that the Lanham Act also reaches post-sale confusion—the "manifesto" accompanying direct purchases could not cure confusion among downstream observers.

Losing Rogers is not fatal, as the remand in the Jack Daniel's litigation itself shows. Bad Spaniels qualified as a successful parody—one that depends on the parodied mark's fame and on evident contrasts—so the similarity and strength-of-mark factors inverted to favor VIP, and judgment on infringement went to VIP. VIP Products LLC v. Jack Daniel's Properties Incorporated, No. 2:14-cv-02057 (D. Ariz. Jan 23, 2025). Dilution ran the other way: a parodic product that avoids source confusion may still create negative associations and constitute dilution by tarnishment, and on that theory Jack Daniel's prevailed.

Satire and commentary have not reopened Rogers once source-identifying use is shown. Embedding the BAYC marks in the satirical RR/BAYC NFT collection's name and symbol foreclosed both Rogers and nominative fair use—"[i]t does not matter that Defendants' ultimate goal may have been criticism and commentary"—though likelihood of confusion proved fact-bound, so the Ninth Circuit reversed summary judgment on that issue and remanded for trial. Yuga Labs, Inc. v. Ripps, 144 F.4th 1137 (9th Cir. 2025). The MetaBirkins NFTs met a harder landing: applying Jack Daniel's, the district court sustained the jury's verdict for Hermès and entered a permanent injunction, noting that a disclaimer nearly identical to the one found insufficient in Jack Daniel's could not avoid confusion. Hermès International v. Rothschild, No. 1:22-cv-00384 (S.D.N.Y. Jun 23, 2023).

The rule's boundary is use "as a mark." Jack Daniel's did not overrule Rogers, and dismissal remains proper where a challenged use performs a solely expressive, non-source-identifying function. Hara v. Netflix, Inc., 146 F.4th 872 (9th Cir. 2025). Across these outcomes the pattern holds: a parody defendant that brands its own goods with the plaintiff's mark forfeits Rogers and litigates the confusion factors—ground where a genuinely successful parody can still defeat infringement, as VIP ultimately did on remand, yet remains exposed to dilution by tarnishment, and where injunctions issued in Vans and Hermès because confusion remained likely.