Page:Jack Daniel's Properties v. VIP Products.pdf/17

Rh expressive parody entitled to Rogers’ protection. See Harley-Davidson, Inc. v. Grottanelli, 164 F. 3d 806, 812–813 (1999). The court acknowledged that the mechanic’s adapted logo conveyed a “somewhat humorous[]” message. Id., at 813. But his use of the logo was a quintessential “trademark use”: to brand his “repair and parts business”—through signage, a newsletter, and T-shirts—with images “similar” to Harley-Davidson’s. Id., at 809, 812–813.

The point is that whatever you make of Rogers—and again, we take no position on that issue—it has always been a cabined doctrine. If we put this case to the side, the Rogers test has applied only to cases involving “non-trademark uses”—or otherwise said, cases in which “the defendant has used the mark” at issue in a “non-source-identifying way.” S. Dogan & M. Lemley, Grounding Trademark Law Through Trademark Use, 92 Iowa L. Rev. 1669, 1684 (2007); see id., at 1683–1684, and n. 58. The test has not insulated from ordinary trademark scrutiny the use of trademarks as trademarks, “to identify or brand [a defendant’s] goods or services.” Id., at 1683.

We offer as one last example of that limitation a case with a striking resemblance to this one. It too involved dog products, though perfumes rather than toys. Yes, the defendant sold “a line of pet perfumes whose names parody elegant brands sold for human consumption.” Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 412 (SDNY 2002) (Mukasey, J.). The product at issue was named Timmy Holedigger—which Tommy Hilfiger didn’t much like. The defendant asked for application of Rogers. The court declined it, relying on Harley-Davidson. See 221 F. Supp. 2d, at 414. Rogers, the court explained, kicks in when a suit involves solely “nontrademark uses of [a] mark—that is, where the trademark is not being used to indicate the source or origin” of a product, but only to convey a different kind of message. 221 F. Supp. 2d, at 414.