` (Slip Opinion)
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` OCTOBER TERM, 2022
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`Syllabus
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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` SUPREME COURT OF THE UNITED STATES
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` JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS
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`LLC
` CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
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`THE NINTH CIRCUIT
`No. 22–148. Argued March 22, 2023—Decided June 8, 2023
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`The Lanham Act, the core federal trademark statute, defines a trade-
`mark by its primary function: identifying a product’s source and dis-
`tinguishing that source from others. In serving that function, trade-
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`marks help consumers select the products they want to purchase (or
`avoid) and help producers reap the financial rewards associated with
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`a product’s good reputation. To help protect trademarks, the Lanham
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`Act creates federal causes of action for trademark infringement and
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`trademark dilution. In a typical infringement case, the question is
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`whether the defendant’s use of a mark is “likely to cause confusion, or
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` 15 U. S. C. §§1114(1)(A),
`to cause mistake, or to deceive.”
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`1125(a)(1)(A). In a typical dilution case, the question is whether the
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`defendant “harm[ed] the reputation” of a famous trademark.
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`§§1125(c)(2)(A), (C).
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`Respondent VIP Products makes a squeaky, chewable dog toy de-
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`signed to look like a bottle of Jack Daniel’s whiskey. But not entirely.
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`On the toy, for example, the words “Jack Daniel’s” become “Bad Span-
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`iels.” And “Old No. 7 Brand Tennessee Sour Mash Whiskey” turns into
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`“The Old No. 2 On Your Tennessee Carpet.” These jokes did not im-
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`press petitioner Jack Daniel’s Properties, which owns trademarks in
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`the distinctive Jack Daniel’s bottle and in many of the words and
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`graphics on its label.
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`Soon after the Bad Spaniels toy hit the market, Jack Daniel’s de-
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`manded that VIP stop selling it. VIP filed suit, seeking a declaratory
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`judgment that Bad Spaniels neither infringed nor diluted Jack Dan-
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`iel’s trademarks. Jack Daniel’s counterclaimed for infringement and
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`dilution. At summary judgment, VIP argued that Jack Daniel’s in-
`fringement claim failed under the so-called Rogers test—a threshold
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`JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
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` test developed by the Second Circuit and designed to protect First
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` Amendment interests in the trademark context. See Rogers v. Gri-
` maldi, 875 F. 2d 994. When “expressive works” are involved, VIP con-
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` tended, that test requires dismissal of an infringement claim at the
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` outset unless the complainant can show either (1) that the challenged
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` use of a mark “has no artistic relevance to the underlying work” or (2)
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` that it “explicitly misleads as to the source or the content of the work.”
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` Id., at 999. Because Jack Daniel’s could not make that showing, VIP
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` claimed, the Lanham Act’s statutory “likelihood of confusion” standard
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` became irrelevant. And as for the dilution claim, VIP urged that Jack
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` Daniel’s could not succeed because Bad Spaniels was a parody of Jack
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` Daniel’s and therefore made “fair use” of its famous marks.
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` §1125(c)(3)(A)(ii).
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` The District Court rejected both of VIP’s contentions for a common
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` reason: because VIP had used the cribbed Jack Daniel’s features as
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`trademarks—i.e., to identify the source of its own products. As the
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`District Court saw it, when another’s trademark is used for “source
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`identification,” Rogers does not apply, and instead the infringement
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`suit turns on likelihood of confusion. The court likewise rejected VIP’s
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`invocation of the fair-use exclusion, holding that parodies fall within
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`that exclusion only when they do not use a famous mark to identify the
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` source of the alleged diluter’s product. The case proceeded to a bench
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` trial, where the District Court found that consumers were likely to be
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` confused about the source of the Bad Spaniels toy and that the toy’s
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` negative associations with dog excrement (e.g., “The Old No. 2”) would
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` harm Jack Daniel’s reputation. The Ninth Circuit reversed. Finding
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` the infringement claim subject to the threshold Rogers test, the Court
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` of Appeals remanded the case to the District Court to decide whether
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` Jack Daniel’s could satisfy either prong of that test. And the Court of
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`Appeals awarded judgment on the dilution claim to VIP, holding that
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` because Bad Spaniels parodies Jack Daniel’s, it falls under the “non-
` commercial use” exclusion. §1125(c)(3)(C). On remand, the District
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` Court found that Jack Daniel’s could not satisfy either prong of Rogers,
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` and so granted summary judgment to VIP on infringement. The Court
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` of Appeals summarily affirmed.
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` Held:
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` 1. When an alleged infringer uses a trademark as a designation of
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` source for the infringer’s own goods, the Rogers test does not apply.
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` Pp. 10–19.
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` (a) The Second Circuit created the Rogers test for titles of “artistic
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` works” based on its view that such titles have an “expressive element”
` implicating “First Amendment values” and carry only a “slight risk” of
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` confusing consumers about the “source or content” of the underlying
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` work. 875 F. 2d, at 998–1000. Over the decades, lower courts adopting
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`Cite as: 599 U. S. ____ (2023)
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` Rogers have confined it to similar cases, in which a trademark is used
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` not to designate a work’s source, but solely to perform some other ex-
` pressive function. See, e.g., Mattel, Inc. v. MCA Records, Inc., 296 F. 3d
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` 894, 901 (use of the Barbie name in band’s song “Barbie Girl” was “not
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` [as] a source identifier”). The same courts, though, routinely conduct
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` likelihood-of-confusion analysis in cases where trademarks are used as
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` trademarks—i.e., to designate source. See, e.g., Tommy Hilfiger Li-
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` censing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 414–415 (pa-
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` rodic pet perfumes did not trigger Rogers because defendant’s use of
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` Tommy Hilfiger’s mark was “at least in part” for “source identifica-
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` tion”). Thus, whatever Rogers’ merit—an issue on which this Court
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` takes no position—it has always been a cabined doctrine: It has not
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` insulated from ordinary trademark scrutiny the use of trademarks as
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` That conclusion fits trademark law, and reflects its primary mission.
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` Consumer confusion about source—trademark law’s cardinal sin—is
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` most likely to arise when someone uses another’s trademark as a
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` trademark. In such cases, Rogers has no proper application. Nor does
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` that result change because the use of a mark has other expressive con-
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`tent. Under the Ninth Circuit’s approach, Bad Spaniels was automat-
` ically entitled to Rogers’ protection because it “communicate[d] a hu-
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` morous message.” 953 F. 3d 1170, 1175. On that view, few trademark
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`Ninth Circuit was mistaken to believe that the First Amendment de-
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` manded such a result. When a mark is used as a source identifier, the
` First Amendment does not demand a threshold inquiry. Pp. 10–17.
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` (b) In this case, VIP conceded that it used the Bad Spaniels trade-
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` mark and trade dress as source identifiers. And VIP has said and done
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`more in the same direction with respect to Bad Spaniels and other sim-
` ilar products. The only question remaining is whether the Bad Span-
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` iels trademarks are likely to cause confusion. Although VIP’s effort to
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` parody Jack Daniel’s does not justify use of the Rogers test, it may
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`make a difference in the standard trademark analysis. This Court re-
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` mands that issue to the courts below. Pp. 17–19.
` 2. The Lanham Act’s exclusion from dilution liability for “[a]ny non-
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`commerical use of a mark,” §1125(c)(3)(C), does not shield parody, crit-
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`icism, or commentary when an alleged diluter uses a mark as a desig-
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`nation of source for its own goods. The Ninth Circuit’s holding to the
`contrary puts the noncommercial exclusion in conflict with the stat-
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`ute’s fair-use exclusion. The latter exclusion specifically covers uses
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`“parodying, criticizing, or commenting upon” a famous mark owner,
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`§1125(c)(3)(A)(ii), but does not apply when the use is “as a designation
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`of source for the person’s own goods or services,” §1125(c)(3)(A). Given
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`JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
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`that carve-out, parody is exempt from liability only if not used to des-
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`ignate source. The Ninth Circuit’s expansive view of the noncommer-
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`cial use exclusion—that parody is always exempt, regardless whether
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`it designates source—effectively nullifies Congress’s express limit on
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`the fair-use exclusion for parody. Pp. 19–20.
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`953 F. 3d 1170, vacated and remanded.
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`KAGAN, J., delivered the opinion for a unanimous Court. SOTOMAYOR,
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`J., filed a concurring opinion, in which ALITO, J., joined. GORSUCH, J.,
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`filed a concurring opinion, in which THOMAS and BARRETT, JJ., joined.
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` Cite as: 599 U. S. ____ (2023)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` United States Reports. Readers are requested to notify the Reporter of
` Decisions, Supreme Court of the United States, Washington, D. C. 20543,
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` pio@supremecourt.gov, of any typographical or other formal errors.
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`SUPREME COURT OF THE UNITED STATES
`_________________
` No. 22–148
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`_________________
` JACK DANIEL’S PROPERTIES, INC., PETITIONER v.
`VIP PRODUCTS LLC
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
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`APPEALS FOR THE NINTH CIRCUIT
`[June 8, 2023]
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` JUSTICE KAGAN delivered the opinion of the Court.
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`This case is about dog toys and whiskey, two items sel-
`dom appearing in the same sentence. Respondent VIP
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`Products makes a squeaky, chewable dog toy designed to
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`look like a bottle of Jack Daniel’s whiskey. Though not en-
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`tirely. On the toy, for example, the words “Jack Daniel’s”
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`become “Bad Spaniels.” And the descriptive phrase “Old
`No. 7 Brand Tennessee Sour Mash Whiskey” turns into
`“The Old No. 2 On Your Tennessee Carpet.” The jokes did
`not impress petitioner Jack Daniel’s Properties. It owns
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`trademarks in the distinctive Jack Daniel’s bottle and in
`many of the words and graphics on the label. And it be-
`lieved Bad Spaniels had both infringed and diluted those
`trademarks. Bad Spaniels had infringed the marks, the ar-
`gument ran, by leading consumers to think that Jack Dan-
`iel’s had created, or was otherwise responsible for, the dog
`toy. And Bad Spaniels had diluted the marks, the argu-
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`ment went on, by associating the famed whiskey with, well,
`dog excrement.
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`The Court of Appeals, in the decision we review, saw
`things differently. Though the federal trademark statute
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`JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
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`makes infringement turn on the likelihood of consumer con-
`fusion, the Court of Appeals never got to that issue. On the
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`court’s view, the First Amendment compels a stringent
`threshold test when an infringement suit challenges a so-
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`called expressive work—here (so said the court), the Bad
`Spaniels toy. And that test knocked out Jack Daniel’s
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`claim, whatever the likelihood of confusion. Likewise,
`Jack’s dilution claim failed—though on that issue the prob-
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`lem was statutory. The trademark law provides that the
`“noncommercial” use of a mark cannot count as dilution. 15
`U. S. C. §1125(c)(3)(C). The Bad Spaniels marks, the court
`held, fell within that exemption because the toy communi-
`cated a message—a kind of parody—about Jack Daniel’s.
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`Today, we reject both conclusions. The infringement is-
`sue is the more substantial. In addressing it, we do not de-
`cide whether the threshold inquiry applied in the Court of
`Appeals is ever warranted. We hold only that it is not ap-
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`propriate when the accused infringer has used a trademark
`to designate the source of its own goods—in other words,
`has used a trademark as a trademark. That kind of use
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`falls within the heartland of trademark law, and does not
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`receive special First Amendment protection. The dilution
`issue is more simply addressed. The use of a mark does not
`count as noncommercial just because it parodies, or other-
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`wise comments on, another’s products.
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`A
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`Start at square 1, with what a trademark is and does.
`The Lanham Act, the core federal trademark statute, de-
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`fines a trademark as follows: “[A]ny word, name, symbol, or
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`device, or any combination thereof ” that a person uses “to
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`identify and distinguish his or her goods . . . from those
`manufactured or sold by others and to indicate the source
`of the goods.” §1127. The first part of that definition, iden-
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`tifying the kind of things covered, is broad: It encompasses
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`Opinion of the Court
`words (think “Google”), graphic designs (Nike’s swoosh),
`and so-called trade dress, the overall appearance of a prod-
`uct and its packaging (a Hershey’s Kiss, in its silver wrap-
`per). See Wal-Mart Stores, Inc. v. Samara Brothers, Inc.,
`529 U. S. 205, 209–210 (2000). The second part of the defi-
`nition describes every trademark’s “primary” function: “to
`identify the origin or ownership of the article to which it is
`affixed.” Hanover Star Milling Co. v. Metcalf, 240 U. S. 403,
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`412 (1916). Trademarks can of course do other things: catch
`a consumer’s eye, appeal to his fancies, and convey every
`manner of message. But whatever else it may do, a trade-
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`mark is not a trademark unless it identifies a product’s
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`source (this is a Nike) and distinguishes that source from
`others (not any other sneaker brand). See generally 1 J.
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`McCarthy, Trademarks and Unfair Competition §3:1 (5th
`ed. 2023). In other words, a mark tells the public who is
`responsible for a product.
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`In serving that function, trademarks benefit consumers
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`and producers alike. A source-identifying mark enables
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`customers to select “the goods and services that they wish
`to purchase, as well as those they want to avoid.” Matal v.
`Tam, 582 U. S. 218, 224 (2017). The mark “quickly and eas-
`ily assures a potential customer that this item—the item
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`with this mark—is made by the same producer as other
`similarly marked items that he or she liked (or disliked) in
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`the past.” Qualitex Co. v. Jacobson Products Co., 514 U. S.
`159, 164 (1995). And because that is so, the producer of a
`quality product may derive significant value from its
`marks. They ensure that the producer itself—and not some
`“imitating competitor”—will reap the financial rewards as-
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`sociated with the product’s good reputation. Ibid.
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`To help protect marks, the Lanham Act sets up a volun-
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`tary registration system. Any mark owner may apply to the
`Patent and Trademark Office to get its mark placed on a
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`federal register. Consistent with trademark law’s basic
`purpose, the lead criterion for registration is that the mark
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`JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
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`Opinion of the Court
`“in fact serve as a ‘trademark’ to identify and distinguish
`goods.” 3 McCarthy §19:10 (listing the principal register’s
`eligibility standards). If it does, and the statute’s other cri-
`teria also are met, the registering trademark owner re-
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`ceives certain benefits, useful in infringement litigation.
`See, e.g., Iancu v. Brunetti, 588 U. S. ___, ___ (2019) (slip
`op., at 2) (noting that “registration constitutes ‘prima facie
`evidence’ of the mark’s validity”). But the owner of even an
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`unregistered trademark can “use [the mark] in commerce
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`and enforce it against infringers.” Ibid.
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`The Lanham Act also creates a federal cause of action for
`trademark infringement. In the typical case, the owner of
`a mark sues someone using a mark that closely resembles
`its own. The court must decide whether the defendant’s use
`is “likely to cause confusion, or to cause mistake, or to de-
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`ceive.” §§1114(1)(A), 1125(a)(1)(A). The “keystone” in that
`statutory standard is “likelihood of confusion.” See 4
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`McCarthy §23:1. And the single type of confusion most
`commonly in trademark law’s sights is confusion “about the
`source of a product or service.” Moseley v. V Secret Cata-
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`logue, Inc., 537 U. S. 418, 428 (2003); see 4 McCarthy §23:5.
`Confusion as to source is the bête noire of trademark law—
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`the thing that stands directly opposed to the law’s twin
`goals of facilitating consumers’ choice and protecting pro-
`ducers’ good will.
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`Finally, the Lanham Act creates a cause of action for the
`dilution of famous marks, which can succeed without like-
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`lihood of confusion. See §1125(c); Moseley, 537 U. S., at 431.
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`A famous mark is one “widely recognized” by the public as
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`“designati[ng the] source” of the mark owner’s goods.
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`§1125(c)(2)(A). Dilution of such a mark can occur “by tar-
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`nishment” (as well as by “blurring,” not relevant here).
`§1125(c)(1). As the statute describes the idea, an “associa-
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`tion arising from the similarity between” two marks—one
`of them famous—may “harm[] the reputation of the famous
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`mark,” and thus make the other mark’s owner liable.
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`Opinion of the Court
`§1125(c)(2)(C). But there are “[e]xclusions”—categories of
`activity not “actionable as dilution.” §1125(c)(3). One ex-
`clusion protects any “noncommercial use of a mark.”
`§1125(c)(3)(C). Another protects a “fair use” of a mark “in
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`connection with . . . parodying, criticizing, or commenting
`upon
`the
`famous mark owner or
`[its] goods.”
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`§1125(c)(3)(A)(ii). The fair-use exclusion, though, comes
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`with a caveat. A defendant cannot get its benefit—even if
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`engaging in parody, criticism, or commentary—when using
`the similar-looking mark “as a designation of source for the
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`[defendant’s] own goods.” §1125(c)(3)(A). In other words,
`the exclusion does not apply if the defendant uses the simi-
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`lar mark as a mark.
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`B
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`A bottle of Jack Daniel’s—no, Jack Daniel’s Old No. 7
`Tennessee Sour Mash Whiskey—boasts a fair number of
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`trademarks. Recall what the bottle looks like (or better yet,
`retrieve a bottle from wherever you keep liquor; it’s proba-
`bly there):
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`“Jack Daniel’s” is a registered trademark, as is “Old No. 7.”
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`So too the arched Jack Daniel’s logo. And the stylized label
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`JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
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` Opinion of the Court
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` with filigree (i.e., twirling white lines). Finally, what might
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`be thought of as the platform for all those marks—the whis-
`key’s distinctive square bottle—is itself registered.
`VIP is a dog toy company, making and selling a product
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`line of chewable rubber toys that it calls “Silly Squeakers.”
`(Yes, they squeak when bitten.) Most of the toys in the line
`are designed to look like—and to parody—popular beverage
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`brands. There are, to take a sampling, Dos Perros (cf. Dos
`Equis), Smella Arpaw (cf. Stella Artois), and Doggie Walker
`(cf. Johnnie Walker). VIP has registered trademarks in all
`those names, as in the umbrella term “Silly Squeakers.”
`In 2014, VIP added the Bad Spaniels toy to the line. VIP
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`did not apply to register the name, or any other feature of,
`Bad Spaniels. But according to its complaint (further ad-
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`dressed below), VIP both “own[s]” and “use[s]” the “‘Bad
`Spaniels’ trademark and trade dress.” App. 3, 11; see infra,
`at 8, 17. And Bad Spaniels’ trade dress, like the dress of
`many Silly Squeakers toys, is designed to evoke a distinc-
`tive beverage bottle-with-label. Even if you didn’t already
`know, you’d probably not have much trouble identifying
`which one.
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`Opinion of the Court
`Bad Spaniels is about the same size and shape as an ordi-
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`nary bottle of Jack Daniel’s. The faux bottle, like the origi-
`
`nal, has a black label with stylized white text and a white
`filigreed border. The words “Bad Spaniels” replace “Jack
`Daniel’s” in a like font and arch. Above the arch is an image
`of a spaniel. (This is a dog toy, after all.) Below the arch,
`
`“The Old No. 2 On Your Tennessee Carpet” replaces “Old
`
`No. 7 Tennessee Sour Mash Whiskey” in similar graphic
`form. The small print at the bottom substitutes “43% poo
`by vol.” and “100% smelly” for “40% alc. by vol. (80 proof ).”
`
`
`
`The toy is packaged for sale with a cardboard hangtag (so
`it can be hung on store shelves). Here is the back of the
`hangtag:
`
`
`At the bottom is a disclaimer: “This product is not affiliated
`with Jack Daniel Distillery.” In the middle are some warn-
`ings and guarantees. And at the top, most relevant here,
`
`are two product logos—on the left for the Silly Squeakers
`
`line, and on the right for the Bad Spaniels toy.
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`8
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`JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
`
`Opinion of the Court
`Soon after Bad Spaniels hit the market, Jack Daniel’s
`
`
`sent VIP a letter demanding that it stop selling the product.
`
`VIP responded by bringing this suit, seeking a declaratory
`judgment that Bad Spaniels neither infringed nor diluted
`
`Jack Daniel’s trademarks. The complaint alleged, among
`other things, that VIP is “the owner of all rights in its ‘Bad
`
`Spaniels’ trademark and trade dress for its durable rubber
`squeaky novelty dog toy.” App. 3; see supra, at 6. Jack
`Daniel’s counterclaimed under the Lanham Act for both
`trademark infringement and trademark dilution by tar-
`nishment.
`
`VIP moved for summary judgment on both claims. First,
`
`VIP argued that Jack Daniel’s infringement claim failed
`under a threshold test derived from the First Amendment
`to protect “expressive works”—like (VIP said) the Bad
`
`Spaniels toy. When those works are involved, VIP con-
`tended, the so-called Rogers test requires dismissal of an
`
`infringement claim at the outset unless the complainant
`can show one of two things: that the challenged use of a
`
`mark “has no artistic relevance to the underlying work” or
`
`that it “explicitly misleads as to the source or the content of
`
`the work.” Rogers v. Grimaldi, 875 F. 2d 994, 999 (CA2
`
`
`1989) (Newman, J.). Because Jack Daniel’s could make nei-
`ther showing, VIP argued, the likelihood-of-confusion issue
`became irrelevant. Second, VIP urged that Jack Daniel’s
`could not succeed on a dilution claim because Bad Spaniels
`was a “parody[]” of Jack Daniel’s, and therefore made “fair
`use” of its famous marks. §1125(c)(3)(A)(ii).
`
`The District Court rejected both contentions for a com-
`mon reason: because VIP had used the cribbed Jack Dan-
`
`iel’s features as trademarks—that is, to identify the source
`of its own products. In the court’s view, when “another’s
`
`trademark is used for source identification”—as the court
`thought was true here—the threshold Rogers test does not
`
`apply. App. to Pet. for Cert. 89a. Instead, the suit must
`address the “standard” infringement question: whether the
`
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`

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` Cite as: 599 U. S. ____ (2023)
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`Opinion of the Court
`use is “likely to cause consumer confusion.” Ibid. And like-
`wise, VIP could not invoke the dilution provision’s fair-use
`exclusion. Parodies fall within that exclusion, the court ex-
`
`plained, only when the uses they make of famous marks do
`not serve as “a designation of source for the [alleged di-
`
`luter’s] own goods.” Id., at 104a (quoting §1125(c)(3)(A)).
`
`The case thus proceeded to a bench trial, where Jack
`Daniel’s prevailed. The District Court found, based largely
`on survey evidence, that consumers were likely to be con-
`fused about the source of the Bad Spaniels toy. See 291
`F. Supp. 3d 891, 906–911 (D Ariz. 2018). And the court
`
`thought that the toy, by creating “negative associations”
`with “canine excrement,” would cause Jack Daniel’s “repu-
`tational harm.” Id., at 903, 905.
`
`
`But the Court of Appeals for the Ninth Circuit reversed,
`
`ruling that the District Court had gotten the pretrial legal
`issues wrong. In the Ninth Circuit’s view, the infringement
`claim was subject to the threshold Rogers test because Bad
`
`
`Spaniels is an “expressive work”: Although just a dog toy,
`and “surely not the equivalent of the Mona Lisa,” it “com-
`
`municates a humorous message.” 953 F. 3d 1170, 1175
`(2020) (internal quotation marks omitted). The Court of
`
`Appeals therefore returned the case to the District Court to
`decide whether Jack Daniel’s could satisfy either of Rogers’
`
`two prongs. And the Ninth Circuit awarded judgment on
`the dilution claim to VIP. The court did not address the
`statutory exclusion for parody and other fair use, as the Dis-
`trict Court had. Instead, the Court of Appeals held that the
`exclusion for “noncommercial use” shielded VIP from liabil-
`
`ity. §1125(c)(3)(C). The “use of a mark may be ‘noncom-
`mercial,’” the court reasoned, “even if used to sell a prod-
`
`
`
`uct.” 953 F. 3d, at 1176 (internal quotation marks omitted).
`
`And here it was so, the court found, because it “parodies”
`and “comments humorously” on Jack Daniel’s. Id., at 1175;
`see id., at 1176.
`
`
`On remand, the District Court found that Jack Daniel’s
`
`
`
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`

`

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`10 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
`
`
`Opinion of the Court
`could not satisfy either prong of Rogers, and so granted
`
`summary judgment to VIP on infringement. Jack Daniel’s
`appealed, and the Ninth Circuit summarily affirmed.
`
`We then granted certiorari to consider the Court of Ap-
`peals’ rulings on both infringement and dilution. 598 U. S.
`
`___ (2022).
`
`
`II
`
`Our first and more substantial question concerns Jack
`Daniel’s infringement claim: Should the company have had
`
`to satisfy the Rogers threshold test before the case could
`proceed to the Lanham Act’s likelihood-of-confusion in-
`quiry?1 The parties address that issue in the broadest pos-
`
`sible way, either attacking or defending Rogers in all its
`
`possible applications. Today, we choose a narrower path.
`Without deciding whether Rogers has merit in other con-
`
`texts, we hold that it does not when an alleged infringer
`
`uses a trademark in the way the Lanham Act most cares
`about: as a designation of source for the infringer’s own
`goods. See §1127; supra, at 2–3. VIP used the marks de-
`rived from Jack Daniel’s in that way, so the infringement
`
`claim here rises or falls on likelihood of confusion. But that
`inquiry is not blind to the expressive aspect of the Bad
`Spaniels toy that the Ninth Circuit highlighted. Beyond
`source designation, VIP uses the marks at issue in an effort
`
`to “parody” or “make fun” of Jack Daniel’s. Tr. of Oral Arg.
`58, 66. And that kind of message matters in assessing con-
`fusion because consumers are not so likely to think that the
`
`maker of a mocked product is itself doing the mocking.
`A
`
`
`To see why the Rogers test does not apply here, first con-
`
`sider the case from which it emerged. The defendants there
`
`——————
` 1To be clear, when we refer to “the Rogers threshold test,” we mean
`
` any threshold First Amendment filter.
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` 11
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` Cite as: 599 U. S. ____ (2023)
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`Opinion of the Court
`had produced and distributed a film by Federico Fellini ti-
`tled “Ginger and Fred” about two fictional Italian cabaret
`
`dancers (Pippo and Amelia) who imitated Ginger Rogers
`
`and Fred Astaire. When the film was released in the United
`States, Ginger Rogers objected under the Lanham Act to
`
`the use of her name. The Second Circuit rejected the claim.
`It reasoned that the titles of “artistic works,” like the works
`themselves, have an “expressive element” implicating
`“First Amendment values.” 875 F. 2d, at 998. And at the
`same time, such names posed only a “slight risk” of confus-
`ing consumers about either “the source or the content of the
`
`work.” Id., at 999–1000. So, the court concluded, a thresh-
`
`old filter was appropriate. When a title “with at least some
`
`artistic relevance” was not “explicitly misleading as to
`source or content,” the claim could not go forward. Ibid.
`But the court made clear that it was not announcing a gen-
`
`eral rule. In the typical case, the court thought, the name
`of a product was more likely to indicate its source, and to be
`taken by consumers in just that way. See id., at 1000.
`
`
`Over the decades, the lower courts adopting Rogers have
`confined it to similar cases, in which a trademark is used
`not to designate a work’s source, but solely to perform some
`
`other expressive function. So, for example, when the
`toymaker Mattel sued a band over the song “Barbie Girl”—
`
`with lyrics including “Life in plastic, it’s fantastic” and “I’m
`a blond bimbo girl, in a fantasy world”—the Ninth Circuit
`applied Rogers. Mattel, Inc. v. MCA Records, Inc., 296 F. 3d
`894, 901 (2002). That was because, the court reasoned, the
`
`band’s use of the Barbie name was “not [as] a source iden-
`tifier”: The use did not “speak[] to [the song’s] origin.” Id.,
`at 900, 902; see id., at 902 (a consumer would no more think
`
`
`that the song was “produced by Mattel” than would, “upon
`
`hearing Janis Joplin croon ‘Oh Lord, won’t you buy me a
`Mercedes Benz?,’ . . . suspect that she and the carmaker
`
`
`had entered into a joint venture”). Similarly, the Eleventh
`
`Circuit dismissed a suit under Rogers when a sports artist
`
`
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`

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` 12 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
`
`
`Opinion of the Court
`depicted the Crimson Tide’s trademarked football uniforms
`solely to “memorialize” a notable event in “football history.”
`University of Ala. Bd. of Trustees v. New Life Art, Inc., 683
`
`
`F. 3d 1266, 1279 (2012). And when Louis Vuitton sued be-
`cause a character in the film The Hangover: Part II de-
`scribed his luggage as a “Louis Vuitton” (though pronounc-
`
`ing it Lewis), a district court dismissed the complaint under
`
`
`Rogers. See Louis Vuitton Mallatier S. A. v. Warner Bros.
`
`Entertainment Inc., 868 F. Supp. 2d 172 (SDNY 2012). All
`
`parties agreed that the film was not using the Louis Vuitton
`
`mark as its “own identifying trademark.” Id., at 180 (inter-
`nal quotation marks omitted). When that is so, the court
`reasoned, “confusion will usually be unlikely,” and the “in-
`
`terest in free expression” counsels in favor of avoiding the
`
`standard Lanham Act test. Ibid.
`The same courts, though, routinely conduct likelihood-of-
`
`
`confusion analysis, without mentioning Rogers, when
`
`trademarks are used as trademarks—i.e., to designate
`
`source. See, e.g., JL Beverage Co., LLC v. Jim Beam Brands
`Co., 828 F. 3d 1098, 1102–1103, 1106 (CA9 2016); PlayNa-
`tion Play Systems, Inc. v. Velex Corp., 924 F. 3d 1159, 1164–
`1165 (CA11 2019). And the Second Circuit—Rogers’ home
`
`
`court—has made especially clear that Rogers does not apply
`in that context. For example, that court held that an off-
`shoot political group’s use of the trademark “United We
`Stand America” got no Rogers help because the use was as
`a source identifier. See United We Stand Am., Inc. v.
`United We Stand, Am. New York, Inc., 128 F. 3d 86, 93
`
`
`(1997). True, that slogan had expressive content. But the
`
`defendant group, the court reasoned, was using it “as a
`mark,” to suggest the “same source identification” as the
`original “political movement.” Ibid. And similarly, the Sec-
`ond Circuit (indeed, the judge who authored Rogers) re-
`jected a motorcycle mechanic’s view that his modified ver-
`sion of Harley Davidson’s bar-and-shield logo was an
`
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`

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` Cite as: 599 U. S. ____ (2023)
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`Opinion of the C