Parody and Tarnishment: How Empirical Methods Can Aid Triers of Fact
IPWatchdog.com, May 19, 2023
After almost a decade of litigation, the US Supreme Court has taken up a dispute (Jack Daniel’s Properties Inc. v. VIP Products LLC), over whether a dog chew toy infringes upon Jack Daniel’s “Old No. 7 Brand Tennessee Sour Mash Whiskey” trademark. The defendant in this case claimed that the at-issue product was a humorous parody that did not influence the perception and value of the original product.
The case raises questions about how to determine when or if parody crosses over into consumer confusion and trademark dilution by tarnishment. In an article published in IPWatchdog, Analysis Group Principal Rene Befurt, Vice President Elizabeth Milsark, and Senior Analysts Marie Warchol and Josh Ng explore the types of empirical methods that can be used to assess these questions. The authors first give a brief historical overview of relevant rulings, and then discuss three types of survey evidence that can help the trier of fact make inferences about consumers’ perceptions and behavior in the real world.