Page:Jack Daniel's Properties v. VIP Products.pdf/22

18 in dog toys like “Jose Perro” (cf. Jose Cuervo) and “HeinieSniff’n” (cf. Heineken). And it has chosen to register the names of still other dog toys, including Dos Perros (#6176781), Smella Arpaw (#6262975), and Doggie Walker (#6213816). See. Put all that together, and more than “form” or “rote” emerges: VIP’s conduct is its own admission that it is using the Bad Spaniels (née Jack Daniel’s) trademarks as trademarks, to identify product source.

Because that is so, the only question in this suit going forward is whether the Bad Spaniels marks are likely to cause confusion. There is no threshold test working to kick out all cases involving “expressive works.” But a trademark’s expressive message—particularly a parodic one, as VIP asserts—may properly figure in assessing the likelihood of confusion. See, e.g., Louis Vuitton Malletier S. A. v. Haute Diggity Dog, LLC, 507 F. 3d 252, 265 (CA4 2007) (Parody “influences the way in which the [likelihood-of-confusion] factors are applied”); Brief for United States as Amicus Curiae 17–22 (same). A parody must “conjure up” “enough of [an] original to make the object of its critical wit recognizable.” Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 588 (1994) (internal quotation marks omitted). Yet to succeed, the parody must also create contrasts, so that its message of ridicule or pointed humor comes clear. And once that is done (if that is done), a parody is not often likely to create confusion. Self-deprecation is one thing; self-mockery far less ordinary. So although VIP’s effort to ridicule Jack Daniel’s does not justify use of the Rogers test,