Courts typically analyze trademark infringement claims under the Lanham Act’s likelihood of confusion test. This traditional test, however, is applied more narrowly when an allegedly infringing product is a work of artistic expression. In those cases, courts apply heightened scrutiny to claims of infringement under a threshold First Amendment filter, such as the Rogers v. Grimaldi test. The circumstances under which the Rogers test applies were recently clarified by the Supreme Court in Jack Daniel’s Properties, Inc. v. VIP Products, LLC. In Jack Daniel’s, the Supreme Court held that the Rogers test does not apply “when an alleged infringer uses a trademark in the way the Lanham Act most cares about: as a designation of source for the infringer’s own goods.” You can read more about the Jack Daniel’s case in our article SCOTUS: Dog Toy in the Doghouse as Jack Daniel’s Trademark Infringement Claims Remanded to District Court. Relying on the Supreme Court’s Jack Daniel’s decision, the Second Circuit affirmed a district court’s refusal to apply the Rogers test when analyzing whether MSCHF’s parody sneaker, the “Wavy Baby,” infringed Vans’ trademarks and “Old Skool” trade dress.
