Based on a True Story: The Ever-Expanding Progeny of Rogers v. Grimaldi

Trademark law limits the extent and manner to which individuals can use a surprisingly large percentage of common words in English language. In assessing resulting discord from such conflict, court has several measures by it determine metes bounds First Amendment’s priority over trademark law; case an expressive or artistic work uses another (or name individual), one test that developed is Rogers test, named for 1989 lawsuit involving actress dancer Ginger Rogers. This article examines most recent development ever-expanding ambit test: Ninth Circuit’s decision VIP Products LLC v. Jack Daniel’s Properties, Inc. First, this summarizes policy goals purposes law, provides brief overview Lanham Act’s false endorsement right action dilution, synopsizes both Grimaldi Circuit. It then analyzes district appellate decisions, considers consequences decision. its opinion, Circuit not only stretched purpose breaking point, but also improperly relied upon test’s basic premise as grounds incorrectly dispose claim despite different standards, purposes, infringement dilution statutes; precedent going forward are yet become clear. Finally, concludes considering how remedy ever-increasing scope jurisprudence, reflects on potential effects could have future claims. As whole, distinguished overly expansive view misunderstanding fragile balance between Amendment law. Supreme Court denied certiorari, there little no chance correct faulty itself. Were reform understanding conform with restricted application home circuit, Second Circuit, perhaps some more pernicious be avoided. Nevertheless, short panel’s sua sponte issue amended likely widespread will significantly curtail rights mark holders years come.