Page:Jack Daniel's Properties v. VIP Products.pdf/20

16 Or take a band name that “not only identifies the band but expresses a view about social issues.” Tam, 582 U. S., at 245 (opinion of ) (discussing “The Slants”). Or note how a mark can both function as a mark and have parodic content—as the court found in the Hilfiger/Holedigger litigation. See. The examples could go on and on. As a leading treatise puts the point, the Ninth Circuit’s expansion of Rogers “potentially encompasses just about everything” because names, phrases, symbols, designs, and their varied combinations often “contain some ‘expressive’ message” unrelated to source. 6 McCarthy §31:144.50. That message may well be relevant in assessing the likelihood of confusion between two marks, as we address below. See. But few cases would even get to the likelihood-of-confusion inquiry if all expressive content triggered the Rogers filter. In that event, the Rogers exception would become the general rule, in conflict with courts’ longstanding view of trademark law.

The Ninth Circuit was mistaken to believe that the First Amendment demanded such a result. The court thought that trademark law would otherwise “fail[] to account for the full weight of the public’s interest in free expression.” 953 F. 3d, at 1174. But as the Mattel (i.e., Barbie) court noted, when a challenged trademark use functions as “source-identifying,” trademark rights “play well with the First Amendment”: “Whatever first amendment rights you may have in calling the brew you make in your bathtub ‘Pepsi’ ” are “outweighed by the buyer’s interest in not being fooled into buying it.” 296 F. 3d, at 900. Or in less colorful terms: “[T]o the extent a trademark is confusing” as to a product’s source “the law can protect consumers and trademark owners.” Tam, 582 U. S., at 252 (Kennedy, J., concurring in part and concurring in judgment); see Friedman v. Rogers, 440 U. S. 1, 15 (1979) (rejecting a First Amendment challenge to a law restricting trade names because of the “substantial” interest in “protecting the public from [their]