Trademark law regulates words and images, so it always runs alongside the First Amendment. The short answer for parody: free speech does not create a blanket defense to trademark infringement, but it shapes how confusion is measured, and it flatly limits what the government may refuse to register. Whether your parody survives depends less on how funny it is than on one structural question: are you commenting on the brand, or are you using the joke as your own brand?
That distinction now controls the field. The Supreme Court drew it in Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), and it reorganized more than thirty years of lower court doctrine around it.
The usual explanation is that trademark law regulates commercial speech and source identification rather than ideas. A mark is a signal about origin: this soda came from that company. Stopping a competitor from copying that signal restricts speech in a technical sense, but it restricts a use of language that functions as a commercial designation rather than as expression about anything.
The Court in Jack Daniel’s leaned on exactly that framing, noting that trademark law has long coexisted with the First Amendment without anyone thinking the two collide in the ordinary case. The friction appears at the edges: when the mark shows up inside a movie, a song, a novel, a video game, or a joke, where the word is doing expressive work and not just labeling a box.
The classic accommodation comes from Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). Ginger Rogers sued over Federico Fellini’s film Ginger and Fred. The Second Circuit refused to let the Lanham Act reach the title, holding that for expressive works the statute applies only if the mark has no artistic relevance to the underlying work, or if it explicitly misleads as to source or content. The bar is deliberately low on relevance: any relevance above zero clears it.
Rogers spread widely. The Ninth Circuit used it to protect Barbie Girl in Mattel, Inc. v. MCA Records, 296 F.3d 894 (9th Cir. 2002), a song that Mattel loathed and that plainly evoked its doll. It has covered strip clubs in Grand Theft Auto, a Humvee in Call of Duty, and countless film titles.
Jack Daniel’s did not overrule Rogers. It fenced it. The Court held that Rogers has no role when the defendant uses the challenged mark as a designation of source for the defendant’s own goods or services. VIP sold a squeaky dog toy called Bad Spaniels shaped like a Jack Daniel’s bottle, with “Old No. 2 on your Tennessee Carpet” where the label reads “Old No. 7 Tennessee Sour Mash Whiskey.” VIP had claimed trademark rights in its own Bad Spaniels trade dress, which was fatal. Because VIP was branding, not merely referencing, ordinary likelihood of confusion analysis applied. Justice Kagan wrote for a unanimous Court and pointedly left open how far Rogers extends elsewhere.
Losing the Rogers shortcut is not the same as losing. Parody remains relevant inside the confusion analysis itself, and courts have long recognized that a successful parody undercuts confusion by its own logic. The Fourth Circuit put it memorably in Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 (4th Cir. 2007), upholding “Chewy Vuiton” dog toys: a parody must simultaneously convey that it is the original and that it is not the original. The second message is what defeats the claim. Consumers get the joke, and getting the joke means knowing the joke is not from Louis Vuitton.
That is a fact question, not a constitutional one, and it can go either way. On remand, VIP largely proved the point. The District of Arizona ruled in January 2025 that Bad Spaniels was a successful parody, so consumers were not likely to be confused and there was no infringement. VIP still lost on dilution by tarnishment, because the poop jokes linked the whiskey marks to an unsavory association. Winning the confusion fight and losing the dilution fight in the same order is a good illustration of how separate these tracks are. The strength of the senior mark, which normally favors the plaintiff, cuts the other way in parody cases, because a mark has to be famous for the reference to land at all.
Two other channels matter:
A separate line of cases involves the government’s own conduct at the USPTO, where the First Amendment applies with full force rather than through confusion doctrine.
The pattern is coherent. The government may not condition registration on approving your message, but it may enforce content based, viewpoint neutral rules with deep roots in the trademark tradition. And refusing a registration never bans the speech: an unregistered mark can still be used, and common law rights may still exist.
If you are making something expressive, and the mark appears inside the work rather than on the work as the brand, you are in Rogers territory in most circuits and your position is strong. If you are selling merchandise whose name or trade dress is the joke, you are in ordinary infringement analysis and the question is whether buyers are confused, with the parody helping you only insofar as it is legible enough to dispel confusion.
The riskiest posture is the one VIP occupied: claiming your own trademark rights in the parody. That is the clearest admission that the joke is functioning as a source identifier, which is precisely what removes the shortcut.
Is trademark parody protected by the First Amendment? Sometimes, but not automatically. A parody that comments on the mark or its owner inside an expressive work gets substantial breathing room, and courts weigh the speech interest through trademark doctrine rather than as a standalone constitutional defense. But if you use the parody as your own brand name on a product you sell, Jack Daniel’s Properties v. VIP Products (2023) says ordinary likelihood of confusion analysis applies and the free speech argument does not shortcut it.
What is the Rogers v. Grimaldi test? A screening rule from the Second Circuit in 1989 for trademarks used in expressive works such as films, books, songs, and video games. Under Rogers, the Lanham Act does not reach the use unless the mark has no artistic relevance to the work at all, or it explicitly misleads about the source or content. Jack Daniel’s confined Rogers to uses that are not source identifiers for the defendant’s own goods.
What did Jack Daniel’s v. VIP Products decide? The Supreme Court held unanimously in 2023 that the Rogers test does not apply when an alleged infringer uses a trademark as a designation of source for its own goods. VIP sold a Bad Spaniels squeaky dog toy mimicking a Jack Daniel’s bottle and used that parody as its own brand, so ordinary likelihood of confusion analysis governed. The Court also rejected the noncommercial use exclusion as a shield for dilution in that posture.
Can the government refuse to register offensive trademarks? No, not on the ground that they are offensive. Matal v. Tam (2017) struck down the Lanham Act’s disparagement clause, and Iancu v. Brunetti (2019) struck down the bar on immoral or scandalous marks. Both were viewpoint discrimination. Vidal v. Elster (2024) upheld the names clause, which blocks registering a living person’s name without consent, because it is viewpoint neutral and consistent with trademark’s history.
Going further: What to do if you received a trademark cease and desist .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Ninth Circuit extended Rogers v. Grimaldi to video games: GTA's Pig Pen strip club beat the Play Pen's Lanham Act claims with artistic relevance above zero.
The Second Circuit affirms the Wavy Baby injunction, holding Jack Daniel's bars Rogers when a parody sneaker uses Vans' marks as source identifiers.
The Supreme Court upheld the Lanham Act's bar on registering marks that use a living person's name without consent. The 9-0 result conceals a methodological fracture over whether history alone can resolve a First Amendment question.
The Supreme Court's 2023 ruling that the First Amendment Rogers test does not apply when a parody uses another's trademark as a source identifier for its own goods.
The Ninth Circuit adopted the Rogers test, protected a pop song that lampooned an American icon, and closed with one of the most quoted lines in trademark law: the parties are advised to chill.
The Supreme Court upheld the USOC's exclusive control of the word "Olympic" against a First Amendment challenge and held the committee is not a government actor.
A 6-3 Supreme Court held that the Lanham Act's bar on registering 'immoral or scandalous' marks is viewpoint discrimination that violates the First Amendment.
Ginger Rogers lost her suit over a Fellini film, but the Second Circuit's opinion gave expressive works a durable First Amendment shield against Lanham Act claims that survived for more than three decades.
A unanimous Supreme Court held that trademarks are private speech and that the disparagement clause was viewpoint discrimination the First Amendment forbids, even when the speaker is reclaiming a slur.
