Page:Jack Daniel's Properties v. VIP Products.pdf/9

Rh §1125(c)(2)(C). But there are “[e]xclusions”—categories of activity not “actionable as dilution.” §1125(c)(3). One exclusion protects any “noncommercial use of a mark.” §1125(c)(3)(C). Another protects a “fair use” of a mark “in connection with … parodying, criticizing, or commenting upon the famous mark owner or [its] goods.” §1125(c)(3)(A)(ii). The fair-use exclusion, though, comes with a caveat. A defendant cannot get its benefit—even if engaging in parody, criticism, or commentary—when using the similar-looking mark “as a designation of source for the [defendant’s] own goods.” §1125(c)(3)(A). In other words, the exclusion does not apply if the defendant uses the similar mark as a mark.

A bottle of Jack Daniel’s—no, Jack Daniel’s Old No. 7 Tennessee Sour Mash Whiskey—boasts a fair number of trademarks. Recall what the bottle looks like (or better yet, retrieve a bottle from wherever you keep liquor; it’s probably there): “Jack Daniel’s” is a registered trademark, as is “Old No. 7.” So too the arched Jack Daniel’s logo. And the stylized label