ABSTRACT
The Supreme Court’s decision in Jack Daniel’s muddied the boundary between trademark law and the First Amendment. By redefining source identification as the threshold to the test established in Rogers v Grimaldi, the Court recentered First Amendment protection in line with the core tenets of trademark law, those based on limiting consumer confusion as to the source of a good. However, in the absence of clear guidance for determining source identification, the cases that followed Jack Daniel’s show that lower courts are inconsistently applying source-identifying factors. The Supreme Court has replaced an expansive Ninth Circuit Rogers test that was too lenient in protecting any product with an expressive element with one that is too vague to administer consistently for titles of works, like films and TV series, that have some promotional, and therefore source-identifying, use. The unforeseen consequence is that Jack Daniel’s has removed protection for the very types of works that initially gave rise to the Rogers test in the first place. To address this doctrinal incoherence, this Note proposes a calibrated approach: maintaining Jack Daniel’s source-identification threshold but introducing a balancing test during the confusion analysis stage, using the same framework Jack Daniel’s set up for addressing parody. A balancing test that weighs a work’s expressiveness would provide much-needed protection for titles of works that might face low levels of consumer confusion.
Price, Zachary, Jack Daniel’s Unintended Consequences for Expressive Works: A Sober Assessment of the Aftermath (May 23, 2026).
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