The Trademark Reporter's 2024 "Annual Review" of U.S. Trademark Cases

The Trademark Reporter has published its latest "Annual Review" of U.S. Trademark Cases: "The Seventy-Sixth Year of Administration of the Lanham Act of 1946," by Theodore H. Davis, Jr. and yours truly, John L. Welch. [download pdf here].

In his introduction, Ted Davis opines that the Supreme Court's ruling in Jack Daniel’s Properties, Inc. v. VIP Products LLC is "arguably its most significant decision since Park ’N Fly." The Court reined in the Ninth Circuit's expansive application of the Rogers test, ruling that the proper threshold inquiry is whether the defendant is using a trademark as a designation of source. If so, the ordinary test for likelihood of confusion applies, although "a trademark’s expressive message—particularly a parodic one . . . may properly figure in assessing the likelihood of confusion." As Ted points out, however, a number of questions remain for resolution, including whether and how the Rogers test survives. Ted notes that the Court's opinion in Abitron Austria GmbH v. Hetronic International, Inc. has wide-ranging implications for the extraterritorial application of federal law. And he observes that oral argument in the TRUMP TOO SMALL case suggests that the Court may apply a different framework in the Section 2(c) context than in its Tam and Brunetti decisions. 

TTABlogger comment: Once again I thank The Trademark Reporter for granting leave to provide a link to this issue, which is Copyright © 2024 the International Trademark Association and reprinted with the permission of The Trademark Reporter®, 114 TMR No. 1 (January-February 2024).

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Text Copyright John L. Welch 2023.