On Monday, July 10, Chris Kopitzke will lead the discussion about a Supreme Court trademark decision concerning a doggie chew toy, along with a copyright case in the Southern District of Florida about dueling artworks featuring bananas and duct tape.

In Jack Daniel’s Properties v. VIP Products, No. 22-148 (S. Ct., June 8, 2023), available here, the Supreme Court disagreed with the Ninth Circuit’s application of the Rogers test (allowing heightened First Amendment protection) in a case where a mark and trade dress belonging to Jack Daniel’s were parodied and used as a mark and trade dress for the alleged infringer’s own commercial product.  The Court remanded the infringement claim for application of the traditional likelihood of confusion test and consideration of the parody issue in that context. The Court also rejected VIP’s parody-based defense to trademark dilution, holding that parody “is exempt from liability only if not used to designate source.”

In a case analyzing the protectability and infringement of artworks involving bananas duct-taped to walls, Morford v. Cattelan, 2023 U.S. Dist. LEXIS 102287 (S.D. Fla. June 12, 2023), the U.S. District Court for the Southern District of Florida granted summary judgment to the defendant, order available here. While the subject matter is amusing, the decision provides a good review of copyright infringement analysis, including questions of access and independent creation as well as application of the abstraction-filtration-comparison test and the merger doctrine.


All are welcome to attend the program at noon Pacific Time. To join the discussion, please RSVP via email to elisham @ socalip.com (remove the spaces, which have been inserted to thwart spammers) by noon the day of the program to obtain a video conference link. This activity has been approved for one hour of CLE credit.