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Journal of Intellectual Property Law

Abstract

This Note explores the blurred lines that now exist at the intersection of safeguarding trademark owners’ rights and protecting the public interest in freedom of expression, with a specific focus on the recent and unprecedented Supreme Court ruling in the ‘Bad Spaniels’ dog chew-toy trademark infringement case. The Supreme Court’s June 2023 decision in Jack Daniel’s v. VIP Products prompts a critical analysis of the once-dominant Rogers v. Grimaldi test, questioning its applicability in determining fair use and parody within the realm of trademark infringement. In examining what lies ahead for the evolving world of trademark law post-‘Bad Spaniels’, this Note draws connections to the cinematic landscape with a dissection of Greta Gerwig’s blockbuster film Barbie (2023). The film serves as a compelling case study, demonstrating a trend in how major IP owners, such as Mattel, have begun strategically engaging in self-parody to bolster their brand through the licensing of IP rights. In the wake of the ‘Bad Spaniels’ ruling and its profound implications on both the legitimacy of the Rogers test and trademark law more holistically, legal scholars are undoubtedly left in the dark as to the continued viability of the Rogers framework and will certainly confront future nuances in the field of trademark law as a result. This Note asserts that perhaps this observed shift in trademark law following the ‘Bad Spaniels’ decision might offer assurances to big-player IP owners, suggesting greater protection for their marks in commercial cases, or alternatively, we will witness a surge in creative industries opting for increased licensing of IP rights, as shown in the case of Mattel’s fully-licensed Barbie (2023) film, to steer clear of infringement issues entirely.

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