Page:Jack Daniel's Properties v. VIP Products.pdf/16

12 depicted the Crimson Tide’s trademarked football uniforms solely to “memorialize” a notable event in “football history.” ''University of Ala. Bd. of Trustees v. New Life Art, Inc.'', 683 F. 3d 1266, 1279 (2012). And when Louis Vuitton sued because a character in the film The Hangover: Part II described his luggage as a “Louis Vuitton” (though pronouncing it Lewis), a district court dismissed the complaint under Rogers. See Louis Vuitton Mallatier S. A. v. Warner Bros. Entertainment Inc., 868 F. Supp. 2d 172 (SDNY 2012). All parties agreed that the film was not using the Louis Vuitton mark as its “own identifying trademark.” Id., at 180 (internal quotation marks omitted). When that is so, the court reasoned, “confusion will usually be unlikely,” and the “interest in free expression” counsels in favor of avoiding the standard Lanham Act test. Ibid.

The same courts, though, routinely conduct likelihood-of-confusion analysis, without mentioning Rogers, when trademarks are used as trademarks—i.e., to designate source. See, e.g., JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F. 3d 1098, 1102–1103, 1106 (CA9 2016); PlayNation Play Systems, Inc. v. Velex Corp., 924 F. 3d 1159, 1164–1165 (CA11 2019). And the Second Circuit—Rogers’ home court—has made especially clear that Rogers does not apply in that context. For example, that court held that an offshoot political group’s use of the trademark “United We Stand America” got no Rogers help because the use was as a source identifier. See United We Stand Am., Inc. v. ''United We Stand, Am. New York, Inc.'', 128 F. 3d 86, 93 (1997). True, that slogan had expressive content. But the defendant group, the court reasoned, was using it “as a mark,” to suggest the “same source identification” as the original “political movement.” Ibid. And similarly, the Second Circuit (indeed, the judge who authored Rogers) rejected a motorcycle mechanic’s view that his modified version of Harley Davidson’s bar-and-shield logo was an