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Jack Daniel's Properties, Inc. v. VIP Products LLC
Paid petition · United States Court of Appeals for the Ninth Circuit, No. 21-16969 · judgment March 18, 2022
Before the decision, modestly above the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Ninth Circuit decision below, and a business petitioner, and down for a business respondent.
Question presented
Respondent VIP Products LLC markets and sells dog toys that trade on the brand recognition of famous companies such as petitioner Jack Daniel's Properties, Inc. The district court found that VIP's use of Jack Daniel's trademarks to sell poop-themed dog toys was likely to confuse consumers, infringed Jack Daniel's marks, and tarnished Jack Daniel's reputation. The Ninth Circuit, however, held that VIP's First Amendment interest in using Jack Daniel's trademarks as its own marks on funny dog toys conferred special protection from infringement claims and rendered VIP's commercial dog toys "noncommercial" and thus exempt from dilution-by-tarnishment claims. The questions presented are: I. Whether humorous use of another's trademark as one's own on a commercial product is subject to the Lanham Act's traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims. 2. Whether humorous use of another's mark as one's own on a commercial product is "noncommercial" under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.
Counsel of record
For petitioner
Lisa S. Blatt
Williams & Connolly LLP
For respondent
Bennett Evan Cooper
Dickinson Wright PLLC
Case
Conference history
Distributed for 1 conference
Amicus briefs
6 cert-stage · 24 merits
(16 supporting pet./neither, 8 respondent)
Argument & decision
Argued March 22, 2023 — Lisa S. Blatt · Bennett E. Cooper. Audio and transcript
Decided June 8, 2023. Opinion by Kagan.
Proceedings
- Jul 10 2023Judgment issued.
- Jun 08 2023Judgment VACATED and case REMANDED. Kagan, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Alito, J., joined. Gorsuch, J., filed a concurring opinion, in which Thomas and Barrett, JJ., joined.
- Mar 22 2023Argued. For petitioner: Lisa S. Blatt, Washington, D. C.; and Matthew Guarnieri, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondent: Bennett E. Cooper, Phoenix, Ariz.
- Mar 10 2023Reply of petitioner Jack Daniel's Properties, Inc. filed. (Distributed)
- Mar 06 2023Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument GRANTED.
- Mar 06 2023Motion of Motion Picture Association, Inc. for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument DENIED.
- Feb 27 2023Opposition to motion of Motion Picture Association, Inc. filed by petitioner.
- Feb 23 2023Brief amici curiae of Authors Alliance and ComicMix filed. (Distributed)
- Feb 23 2023Brief amicus curiae of Foundation for Individual Rights and Expression filed. (Distributed)
- Feb 23 2023Brief amici curiae of 30 Trademark Law Professors filed. (Distributed)
- Feb 23 2023Brief amicus curiae of Electronic Frontier Foundation filed. (Distributed)
- Feb 23 2023Amicus brief of MSCHF Product Studio, Inc. not accepted for filing. (February 28, 2023--Corrected brief and PDF to be submitted.)
- Feb 23 2023Motion of Motion Picture Association, Inc. for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed.
- Feb 23 2023Brief amici curiae of First Amendment Professors filed. (Distributed)(Mar. 2, 2023)
- Feb 23 2023Brief amicus curiae of MSCHF Product Studio, Inc. filed.(Mar.6, 2023) (Distributed)
- Feb 22 2023Brief amicus curiae of Professor Andrew C. Michaels filed. (Distributed)
- Feb 22 2023Brief amici curiae of Dan McCall, et al. filed. (Distributed)
- Feb 21 2023Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed.
- Feb 20 2023Motion for Leave to File One Packet of Crayola Colored Pencils of MSCHF Product Studio, Inc. not accepted for filing. (February 28, 2023)
- Feb 16 2023Brief of respondent VIP Products LLC filed. (Distributed)
- Feb 13 2023CIRCULATED
- Feb 03 2023Record requested from the U.S.C.A. for the Ninth Circuit.
- Feb 03 2023All records from the USCA-9th Circuit are available on PACER. Sealed records from the USDC-Arizona were transmitted electronically.
- Jan 31 2023SET FOR ARGUMENT on Wednesday, March 22, 2023.
- Jan 18 2023Brief amicus curiae of NIKE, Inc. filed.
- Jan 18 2023Brief amici curiae of American Craft Spirits Association, et al. filed.
- Jan 18 2023Brief amicus curiae of Intellectual Property Owners Association filed.
- Jan 18 2023Brief amicus curiae of United States filed.
- Jan 18 2023Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
- Jan 18 2023Brief amicus curiae of Motion Picture Association, Inc. in support of neither party filed.
- Jan 18 2023Brief amici curiae of Intellectual Property Professors, et al. in support of neither party filed.
- Jan 18 2023Brief amici curiae of Scholars, Former Judges, and Former Government Officials filed.
- Jan 18 2023Brief amicus curiae of The International Trademark Association in support of neither party filed.
- Jan 18 2023Brief amicus curiae of Campari America LLC filed.
- Jan 18 2023Brief amicus curiae of New York Intellectual Property Law Association in support of neither party filed.
- Jan 18 2023Brief amicus curiae of Constellation Brands, Inc filed.
- Jan 18 2023Brief amici curiae of Levi Strauss & Co., et al. filed.
- Jan 18 2023Brief amicus curiae of Campbell Soup Company filed.
- Jan 18 2023Brief amicus curiae of American Intellectual Property Law Association filed.
- Jan 18 2023Brief amici curiae of American Apparel & Footwear Association, et al. filed.
- Jan 11 2023Brief of petitioner Jack Daniel's Properties, Inc. filed.
- Jan 11 2023Joint appendix filed. (Statement of costs filed)
- Dec 06 2022Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including January 11, 2023. The time to file respondent's brief on the merits is extended to and including February 16, 2023.
- Dec 02 2022Blanket Consent filed by Petitioner, Jack Daniel's Properties, Inc.
- Nov 28 2022Motion for an extension of time to file the briefs on the merits filed.
- Nov 21 2022Petition GRANTED.
- Nov 02 2022DISTRIBUTED for Conference of 11/18/2022.
- Nov 01 2022Reply of petitioner Jack Daniel's Properties, Inc. filed. (Distributed)
- Oct 17 2022Brief of respondent VIP Products LLC in opposition filed.
- Sep 16 2022Brief amicus curiae of American Intellectual Property Law Association filed.
- Sep 16 2022Brief amicus curiae of Campbell Soup Company filed.
- Sep 16 2022Brief amicus curiae of Constellation Brands, Inc. filed.
- Sep 16 2022Brief amici curiae of American Craft Spirits Association, et al. filed.
- Sep 16 2022Brief amicus curiae of the International Trademark Association filed.
- Sep 16 2022Brief amicus curiae of Levi Strauss & Co. and Patagonia Inc. filed.
- Sep 09 2022Motion to extend the time to file a response is granted and the time is extended to and including October 17, 2022.
- Sep 08 2022Motion to extend the time to file a response from September 16, 2022 to October 17, 2022, submitted to The Clerk.
- Aug 05 2022Petition for a writ of certiorari filed. (Response due September 16, 2022)