Jack Daniel's Properties, Inc. v. VIP Products LLC ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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
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.
SUPREME COURT OF THE UNITED STATES
Syllabus
JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS
LLC
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 22–148. Argued March 22, 2023—Decided June 8, 2023
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-
marks help consumers select the products they want to purchase (or
avoid) and help producers reap the financial rewards associated with
a product’s good reputation. To help protect trademarks, the Lanham
Act creates federal causes of action for trademark infringement and
trademark dilution. In a typical infringement case, the question is
whether the defendant’s use of a mark is “likely to cause confusion, or
to cause mistake, or to deceive.” 15 U. S. C. §§1114(1)(A),
1125(a)(1)(A). In a typical dilution case, the question is whether the
defendant “harm[ed] the reputation” of a famous trademark.
§§1125(c)(2)(A), (C).
Respondent VIP Products makes a squeaky, chewable dog toy de-
signed to look like a bottle of Jack Daniel’s whiskey. But not entirely.
On the toy, for example, the words “Jack Daniel’s” become “Bad Span-
iels.” And “Old No. 7 Brand Tennessee Sour Mash Whiskey” turns into
“The Old No. 2 On Your Tennessee Carpet.” These jokes did not im-
press petitioner Jack Daniel’s Properties, which owns trademarks in
the distinctive Jack Daniel’s bottle and in many of the words and
graphics on its label.
Soon after the Bad Spaniels toy hit the market, Jack Daniel’s de-
manded that VIP stop selling it. VIP filed suit, seeking a declaratory
judgment that Bad Spaniels neither infringed nor diluted Jack Dan-
iel’s trademarks. Jack Daniel’s counterclaimed for infringement and
dilution. At summary judgment, VIP argued that Jack Daniel’s in-
fringement claim failed under the so-called Rogers test—a threshold
2 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
Syllabus
test developed by the Second Circuit and designed to protect First
Amendment interests in the trademark context. See Rogers v. Gri-
maldi, 875 F. 2d 994. When “expressive works” are involved, VIP con-
tended, that test requires dismissal of an infringement claim at the
outset unless the complainant can show either (1) that the challenged
use of a mark “has no artistic relevance to the underlying work” or (2)
that it “explicitly misleads as to the source or the content of the work.”
Id., at 999. Because Jack Daniel’s could not make that showing, VIP
claimed, the Lanham Act’s statutory “likelihood of confusion” standard
became irrelevant. And as for the dilution claim, VIP urged that Jack
Daniel’s could not succeed 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 of VIP’s contentions for a common
reason: because VIP had used the cribbed Jack Daniel’s features as
trademarks—i.e., to identify the source of its own products. As the
District Court saw it, when another’s trademark is used for “source
identification,” Rogers does not apply, and instead the infringement
suit turns on likelihood of confusion. The court likewise rejected VIP’s
invocation of the fair-use exclusion, holding that parodies fall within
that exclusion only when they do not use a famous mark to identify the
source of the alleged diluter’s product. The case proceeded to a bench
trial, where the District Court found that consumers were likely to be
confused about the source of the Bad Spaniels toy and that the toy’s
negative associations with dog excrement (e.g., “The Old No. 2”) would
harm Jack Daniel’s reputation. The Ninth Circuit reversed. Finding
the infringement claim subject to the threshold Rogers test, the Court
of Appeals remanded the case to the District Court to decide whether
Jack Daniel’s could satisfy either prong of that test. And the Court of
Appeals awarded judgment on the dilution claim to VIP, holding that
because Bad Spaniels parodies Jack Daniel’s, it falls under the “non-
commercial use” exclusion. §1125(c)(3)(C). On remand, the District
Court found that Jack Daniel’s could not satisfy either prong of Rogers,
and so granted summary judgment to VIP on infringement. The Court
of Appeals summarily affirmed.
Held:
1. When an alleged infringer uses a trademark as a designation of
source for the infringer’s own goods, the Rogers test does not apply.
Pp. 10–19.
(a) The Second Circuit created the Rogers test for titles of “artistic
works” based on its view that such titles have an “expressive element”
implicating “First Amendment values” and carry only a “slight risk” of
confusing consumers about the “source or content” of the underlying
work. 875 F. 2d, at 998–1000. Over the decades, lower courts adopting
Cite as: 599 U. S. ____ (2023) 3
Syllabus
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 ex-
pressive function. See, e.g., Mattel, Inc. v. MCA Records, Inc., 296 F. 3d
894, 901 (use of the Barbie name in band’s song “Barbie Girl” was “not
[as] a source identifier”). The same courts, though, routinely conduct
likelihood-of-confusion analysis in cases where trademarks are used as
trademarks—i.e., to designate source. See, e.g., Tommy Hilfiger Li-
censing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 414–415 (pa-
rodic pet perfumes did not trigger Rogers because defendant’s use of
Tommy Hilfiger’s mark was “at least in part” for “source identifica-
tion”). Thus, whatever Rogers’ merit—an issue on which this Court
takes no position—it has always been a cabined doctrine: It has not
insulated from ordinary trademark scrutiny the use of trademarks as
trademarks.
That conclusion fits trademark law, and reflects its primary mission.
Consumer confusion about source—trademark law’s cardinal sin—is
most likely to arise when someone uses another’s trademark as a
trademark. In such cases, Rogers has no proper application. Nor does
that result change because the use of a mark has other expressive con-
tent. Under the Ninth Circuit’s approach, Bad Spaniels was automat-
ically entitled to Rogers’ protection because it “communicate[d] a hu-
morous message.” 953 F. 3d 1170, 1175. On that view, few trademark
cases would ever get to the likelihood-of-confusion analysis. And the
Ninth Circuit was mistaken to believe that the First Amendment de-
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.
(b) In this case, VIP conceded that it used the Bad Spaniels trade-
mark and trade dress as source identifiers. And VIP has said and done
more in the same direction with respect to Bad Spaniels and other sim-
ilar products. The only question remaining is whether the Bad Span-
iels trademarks are likely to cause confusion. Although VIP’s effort to
parody Jack Daniel’s does not justify use of the Rogers test, it may
make a difference in the standard trademark analysis. This Court re-
mands that issue to the courts below. Pp. 17–19.
2. The Lanham Act’s exclusion from dilution liability for “[a]ny non-
commerical use of a mark,” §1125(c)(3)(C), does not shield parody, crit-
icism, or commentary when an alleged diluter uses a mark as a desig-
nation of source for its own goods. The Ninth Circuit’s holding to the
contrary puts the noncommercial exclusion in conflict with the stat-
ute’s fair-use exclusion. The latter exclusion specifically covers uses
“parodying, criticizing, or commenting upon” a famous mark owner,
§1125(c)(3)(A)(ii), but does not apply when the use is “as a designation
of source for the person’s own goods or services,” §1125(c)(3)(A). Given
4 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-
ignate source. The Ninth Circuit’s expansive view of the noncommer-
cial use exclusion—that parody is always exempt, regardless whether
it designates source—effectively nullifies Congress’s express limit on
the fair-use exclusion for parody. Pp. 19–20.
953 F. 3d 1170, vacated and remanded.
KAGAN, J., delivered the opinion for a unanimous Court. SOTOMAYOR,
J., filed a concurring opinion, in which ALITO, J., joined. GORSUCH, J.,
filed a concurring opinion, in which THOMAS and BARRETT, JJ., joined.
Cite as: 599 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–148
_________________
JACK DANIEL’S PROPERTIES, INC., PETITIONER v.
VIP PRODUCTS LLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 8, 2023]
JUSTICE KAGAN delivered the opinion of the Court.
This case is about dog toys and whiskey, two items sel-
dom appearing in the same sentence. Respondent VIP
Products makes a squeaky, chewable dog toy designed to
look like a bottle of Jack Daniel’s whiskey. Though not en-
tirely. On the toy, for example, the words “Jack Daniel’s”
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
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-
ment went on, by associating the famed whiskey with, well,
dog excrement.
The Court of Appeals, in the decision we review, saw
things differently. Though the federal trademark statute
2 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
Opinion of the Court
makes infringement turn on the likelihood of consumer con-
fusion, the Court of Appeals never got to that issue. On the
court’s view, the First Amendment compels a stringent
threshold test when an infringement suit challenges a so-
called expressive work—here (so said the court), the Bad
Spaniels toy. And that test knocked out Jack Daniel’s
claim, whatever the likelihood of confusion. Likewise,
Jack’s dilution claim failed—though on that issue the prob-
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.
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-
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
falls within the heartland of trademark law, and does not
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-
wise comments on, another’s products.
I
A
Start at square 1, with what a trademark is and does.
The Lanham Act, the core federal trademark statute, de-
fines a trademark as follows: “[A]ny word, name, symbol, or
device, or any combination thereof ” that a person uses “to
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-
tifying the kind of things covered, is broad: It encompasses
Cite as: 599 U. S. ____ (2023) 3
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,
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-
mark is not a trademark unless it identifies a product’s
source (this is a Nike) and distinguishes that source from
others (not any other sneaker brand). See generally 1 J.
McCarthy, Trademarks and Unfair Competition §3:1 (5th
ed. 2023). In other words, a mark tells the public who is
responsible for a product.
In serving that function, trademarks benefit consumers
and producers alike. A source-identifying mark enables
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
with this mark—is made by the same producer as other
similarly marked items that he or she liked (or disliked) in
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-
sociated with the product’s good reputation. Ibid.To help protect marks, the Lanham Act sets up a volun-
tary registration system. Any mark owner may apply to the
Patent and Trademark Office to get its mark placed on a
federal register. Consistent with trademark law’s basic
purpose, the lead criterion for registration is that the mark
4 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
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-
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
unregistered trademark can “use [the mark] in commerce
and enforce it against infringers.” Ibid.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-
ceive.” §§1114(1)(A), 1125(a)(1)(A). The “keystone” in that
statutory standard is “likelihood of confusion.” See 4
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-
logue, Inc., 537 U. S. 418, 428 (2003); see 4 McCarthy §23:5.
Confusion as to source is the bête noire of trademark law—
the thing that stands directly opposed to the law’s twin
goals of facilitating consumers’ choice and protecting pro-
ducers’ good will.
Finally, the Lanham Act creates a cause of action for the
dilution of famous marks, which can succeed without like-
lihood of confusion. See §1125(c); Moseley, 537 U. S., at 431.
A famous mark is one “widely recognized” by the public as
“designati[ng the] source” of the mark owner’s goods.
§1125(c)(2)(A). Dilution of such a mark can occur “by tar-
nishment” (as well as by “blurring,” not relevant here).
§1125(c)(1). As the statute describes the idea, an “associa-
tion arising from the similarity between” two marks—one
of them famous—may “harm[ ] the reputation of the famous
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
connection with . . . parodying, criticizing, or commenting
upon the famous mark owner or [its] goods.”
§1125(c)(3)(A)(ii). The fair-use exclusion, though, comes
with a caveat. A defendant cannot get its benefit—even if
engaging in parody, criticism, or commentary—when using
the similar-looking mark “as a designation of source for the
[defendant’s] own goods.” §1125(c)(3)(A). In other words,
the exclusion does not apply if the defendant uses the simi-
lar mark as a mark.
B
A bottle of Jack Daniel’s—no, Jack Daniel’s Old No. 7
Tennessee Sour Mash Whiskey—boasts a fair number of
trademarks. Recall what the bottle looks like (or better yet,
retrieve a bottle from wherever you keep liquor; it’s proba-
bly there):
“Jack Daniel’s” is a registered trademark, as is “Old No. 7.”
So too the arched Jack Daniel’s logo. And the stylized label
6 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
Opinion of the Court
with filigree (i.e., twirling white lines). Finally, what might
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
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
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
did not apply to register the name, or any other feature of,
Bad Spaniels. But according to its complaint (further ad-
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-
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.
8 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
Cite as: 599 U. S. ____ (2023) 9
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
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
——————
1 To be clear, when we refer to “the Rogers threshold test,” we mean
any threshold First Amendment filter.
Cite as: 599 U. S. ____ (2023) 11
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
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
Cite as: 599 U. S. ____ (2023) 13
Opinion of the Court
expressive parody entitled to Rogers’ protection. See Har-
ley-Davidson, Inc. v. Grottanelli, 164 F. 3d 806, 812–813
(1999). The court acknowledged that the mechanic’s
adapted logo conveyed a “somewhat humorous[ ]” message.
Id., at 813. But his use of the logo was a quintessential
“trademark use”: to brand his “repair and parts business”—
through signage, a newsletter, and T-shirts—with images
“similar” to Harley-Davidson’s. Id., at 809, 812–813.
The point is that whatever you make of Rogers—and
again, we take no position on that issue—it has always been
a cabined doctrine. If we put this case to the side, the Rog-
ers test has applied only to cases involving “non-trademark
uses”—or otherwise said, cases in which “the defendant has
used the mark” at issue in a “non-source-identifying way.”
S. Dogan & M. Lemley, Grounding Trademark Law
Through Trademark Use, 92 Iowa L. Rev. 1669, 1684
(2007); see id., at 1683–1684, and n. 58. The test has not
insulated from ordinary trademark scrutiny the use of
trademarks as trademarks, “to identify or brand [a defend-
ant’s] goods or services.” Id., at 1683.
We offer as one last example of that limitation a case with
a striking resemblance to this one. It too involved dog prod-
ucts, though perfumes rather than toys. Yes, the defendant
sold “a line of pet perfumes whose names parody elegant
brands sold for human consumption.” Tommy Hilfiger Li-
censing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 412
(SDNY 2002) (Mukasey, J.). The product at issue was
named Timmy Holedigger—which Tommy Hilfiger didn’t
much like. The defendant asked for application of Rogers.
The court declined it, relying on Harley-Davidson. See 221
F. Supp. 2d, at 414. Rogers, the court explained, kicks in
when a suit involves solely “nontrademark uses of [a]
mark—that is, where the trademark is not being used to
indicate the source or origin” of a product, but only to con-
vey a different kind of message. 221 F. Supp. 2d, at 414.
14 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
Opinion of the Court
When, instead, the use is “at least in part” for “source iden-
tification”—when the defendant may be “trading on the
good will of the trademark owner to market its own
goods”—Rogers has no proper role. 221 F. Supp. 2d, at 414–
415. And that is so, the court continued, even if the defend-
ant is also “making an expressive comment,” including a
parody of a different product. Id., at 415. The defendant is
still “mak[ing] trademark use of another’s mark,” and must
meet an infringement claim on the usual battleground of
“likelihood of confusion.” Id., at 416.
That conclusion fits trademark law, and reflects its pri-
mary mission. From its definition of “trademark” onward,
the Lanham Act views marks as source identifiers—as
things that function to “indicate the source” of goods, and
so to “distinguish” them from ones “manufactured or sold
by others.” §1127; see supra, at 2–3. The cardinal sin under
the law, as described earlier, is to undermine that function.
See supra, at 3. It is to confuse consumers about source—
to make (some of ) them think that one producer’s products
are another’s. And that kind of confusion is most likely to
arise when someone uses another’s trademark as a trade-
mark—meaning, again, as a source identifier—rather than
for some other expressive function. To adapt one of the
cases noted above: Suppose a filmmaker uses a Louis Vuit-
ton suitcase to convey something about a character (he is
the kind of person who wants to be seen with the product
but doesn’t know how to pronounce its name). See supra,
at 12. Now think about a different scenario: A luggage man-
ufacturer uses an ever-so-slightly modified LV logo to make
inroads in the suitcase market. The greater likelihood of
confusion inheres in the latter use, because it is the one con-
veying information (or misinformation) about who is re-
sponsible for a product. That kind of use “implicate[s] the
core concerns of trademark law” and creates “the paradig-
matic infringement case.” G. Dinwoodie & M. Janis, Con-
fusion Over Use: Contextualism in Trademark Law, 92
Cite as: 599 U. S. ____ (2023) 15
Opinion of the Court
Iowa L. Rev. 1597, 1636 (2007). So the Rogers test—which
offers an escape from the likelihood-of-confusion inquiry
and a shortcut to dismissal—has no proper application.2
Nor does that result change because the use of a mark
has other expressive content—i.e., because it conveys some
message on top of source. Here is where we most dramati-
cally part ways with the Ninth Circuit, which thought that
because Bad Spaniels “communicates a humorous mes-
sage,” it is automatically entitled to Rogers’ protection. 953
F. 3d, at 1175 (internal quotation marks omitted). On that
view, Rogers might take over much of the world. For trade-
marks are often expressive, in any number of ways. Con-
sider how one liqueur brand’s trade dress (beyond identify-
ing source) tells a story, with a bottle in the shape of a friar’s
habit connoting the product’s olden monastic roots:
——————
2 That is not to say (far from it) that every infringement case involving
a source-identifying use requires full-scale litigation. Some of those uses
will not present any plausible likelihood of confusion—because of dissim-
ilarity in the marks or various contextual considerations. And if, in a
given case, a plaintiff fails to plausibly allege a likelihood of confusion,
the district court should dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6). See 6 McCarthy §32:121.75 (providing exam-
ples).
16 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
Opinion of the Court
Or take a band name that “not only identifies the band but
expresses a view about social issues.” Tam, 582 U. S., at
245 (opinion of ALITO, J.) (discussing “The Slants”). Or note
how a mark can both function as a mark and have parodic
content—as the court found in the Hilfiger/Holedigger liti-
gation. See supra, at 13–14. The examples could go on and
on. As a leading treatise puts the point, the Ninth Circuit’s
expansion of Rogers “potentially encompasses just about
everything” because names, phrases, symbols, designs, and
their varied combinations often “contain some ‘expressive’
message” unrelated to source. 6 McCarthy §31:144.50.
That message may well be relevant in assessing the likeli-
hood of confusion between two marks, as we address below.
See infra, at 18–19. But few cases would even get to the
likelihood-of-confusion inquiry if all expressive content trig-
gered the Rogers filter. In that event, the Rogers exception
would become the general rule, in conflict with courts’
longstanding view of trademark law.
The Ninth Circuit was mistaken to believe that the First
Amendment demanded such a result. The court thought
that trademark law would otherwise “fail[ ] to account for
the full weight of the public’s interest in free expression.”
953 F. 3d, at 1174. But as the Mattel (i.e., Barbie) court
noted, when a challenged trademark use functions as
“source-identifying,” trademark rights “play well with the
First Amendment”: “Whatever first amendment rights you
may have in calling the brew you make in your bathtub
‘Pepsi’ ” are “outweighed by the buyer’s interest in not being
fooled into buying it.” 296 F. 3d, at 900. Or in less colorful
terms: “[T]o the extent a trademark is confusing” as to a
product’s source “the law can protect consumers and trade-
mark owners.” Tam, 582 U. S., at 252 (Kennedy, J., concur-
ring in part and concurring in judgment); see Friedman v.
Rogers, 440 U. S. 1, 15 (1979) (rejecting a First Amendment
challenge to a law restricting trade names because of the
“substantial” interest in “protecting the public from [their]
Cite as: 599 U. S. ____ (2023) 17
Opinion of the Court
deceptive and misleading use”). Or yet again, in an espe-
cially clear rendering: “[T]he trademark law generally pre-
vails over the First Amendment” when “another’s trade-
mark (or a confusingly similar mark) is used without
permission” as a means of “source identification.” Yankee
Publishing Inc. v. News Am. Publishing Inc., 809 F. Supp.
267, 276 (SDNY 1992) (Leval, J.) (emphasis deleted). So for
those uses, the First Amendment does not demand a
threshold inquiry like the Rogers test. When a mark is used
as a mark (except, potentially, in rare situations), the like-
lihood-of-confusion inquiry does enough work to account for
the interest in free expression.
B
Here, the District Court correctly held that “VIP uses its
Bad Spaniels trademark and trade dress as source identifi-
ers of its dog toy.” See App. to Pet. for Cert. 105a. In fact,
VIP conceded that point below. In its complaint, VIP al-
leged that it both “own[s] and “use[s]” the “ ‘Bad Spaniels’
trademark and trade dress for its durable rubber squeaky
novelty dog toy.” App. 3, 11. The company thus represented
in this very suit that the mark and dress, although not reg-
istered, are used to “identify and distinguish [VIP’s] goods”
and to “indicate [their] source.” §1127. (Registration of
marks, you’ll recall, is optional. See supra, at 3–4.)
In this Court, VIP says the complaint was a mere “form
allegation”—a matter of “rote.” Tr. of Oral Arg. 73. But
even if we knew what that meant, VIP has said and done
more in the same direction. First, there is the way the prod-
uct is marketed. On the hangtag, the Bad Spaniels logo sits
opposite the concededly trademarked Silly Squeakers logo,
with both appearing to serve the same source-identifying
function. See supra, at 7. And second, there is VIP’s prac-
tice as to other products in the Silly Squeakers line. The
company has consistently argued in court that it owns,
though has never registered, the trademark and trade dress
18 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
Opinion of the Court
in dog toys like “Jose Perro” (cf. Jose Cuervo) and “Hein-
ieSniff ’n” (cf. Heineken).3 And it has chosen to register the
names of still other dog toys, including Dos Perros
(#6176781), Smella Arpaw (#6262975), and Doggie Walker
(#6213816). See supra, at 6. Put all that together, and
more than “form” or “rote” emerges: VIP’s conduct is its own
admission that it is using the Bad Spaniels (née Jack Dan-
iel’s) trademarks as trademarks, to identify product source.
Because that is so, the only question in this suit going
forward is whether the Bad Spaniels marks are likely to
cause confusion. There is no threshold test working to kick
out all cases involving “expressive works.” But a trade-
mark’s expressive message—particularly a parodic one, as
VIP asserts—may properly figure in assessing the likeli-
hood of confusion. See, e.g., Louis Vuitton Malletier S. A. v.
Haute Diggity Dog, LLC, 507 F. 3d 252, 265 (CA4 2007)
(Parody “influences the way in which the [likelihood-of-con-
fusion] factors are applied”); Brief for United States as Ami-
cus Curiae 17–22 (same). A parody must “conjure up”
“enough of [an] original to make the object of its critical wit
recognizable.” Campbell v. Acuff-Rose Music, Inc., 510
U. S. 569, 588 (1994) (internal quotation marks omitted).
Yet to succeed, the parody must also create contrasts, so
that its message of ridicule or pointed humor comes clear.
And once that is done (if that is done), a parody is not often
likely to create confusion. Self-deprecation is one thing;
self-mockery far less ordinary. So although VIP’s effort to
ridicule Jack Daniel’s does not justify use of the Rogers test,
——————
3 See, e.g., VIP Products, LLC v. Tequila Cuervo La Rojena, S. A. de
C. V., No. 20–cv–0319 (D Ariz., Feb. 11, 2020), ECF Doc. 1, p. 3 (“Jose
Perro”); VIP Products, LLC v. Heineken USA, Inc., No. 13–cv–0319 (D
Ariz., Feb. 13, 2013), ECF Doc. 1, pp. 3–4 (“HeinieSniff ’n”); VIP Products,
LLC v. Pabst Brewing Co., No. 14–cv–2084 (D Ariz., Sept. 19, 2014), ECF
Doc. 1, pp. 3–4 (“Blue Cats Trippin”) (cf. Pabst Blue Ribbon); VIP Prod-
ucts, LLC v. Champagne Louis Roederer, S. A., No. 13–cv–2365 (D Ariz.,
Nov. 18, 2013), ECF Doc. 1, pp. 3–4 (“Crispaw”) (cf. Cristal).
Cite as: 599 U. S. ____ (2023) 19
Opinion of the Court
it may make a difference in the standard trademark analy-
sis. Consistent with our ordinary practice, we remand that
issue to the courts below. See Cutter v. Wilkinson, 544 U. S.
709, 718, n. 7 (2005) (noting that this Court is generally “a
court of review, not of first view”).
III
Our second question, more easily dispatched, concerns
Jack Daniel’s claim of dilution by tarnishment (for the link-
age of its whiskey to less savory substances). Recall that
the Ninth Circuit dismissed that claim based on one of the
Lanham Act’s “[e]xclusions” from dilution liability—for
“[a]ny noncommercial use of a mark.” §1125(c)(3)(C); see
supra, at 9. On the court’s view, the “use of a mark may be
‘noncommercial’ even if used to sell a product.” 953 F. 3d,
at 1176 (internal quotation marks omitted). And VIP’s use
is so, the court continued, because it “parodies” and “con-
vey[s] a humorous message” about Jack Daniel’s. Id., at
1175–1176. We need not express a view on the first step of
that reasoning because we think the second step wrong.
However wide the scope of the “noncommercial use” exclu-
sion, it cannot include, as the Ninth Circuit thought, every
parody or humorous commentary.
To begin to see why, consider the scope of another of the
Lanham Act’s exclusions—this one for “[a]ny fair use.” As
described earlier, the “fair use” exclusion specifically covers
uses “parodying, criticizing, or commenting upon” a famous
mark owner. §1125(c)(3)(A)(ii); see supra, at 5. But not in
every circumstance. Critically, the fair-use exclusion has
its own exclusion: It does not apply when the use is “as a
designation of source for the person’s own goods or ser-
vices.” §1125(c)(3)(A). In that event, no parody, criticism,
or commentary will rescue the alleged dilutor. It will be
subject to liability regardless.
The problem with the Ninth Circuit’s approach is that it
20 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
Opinion of the Court
reverses that statutorily directed result, as this case illus-
trates. Given the fair-use provision’s carve-out, parody
(and criticism and commentary, humorous or otherwise) is
exempt from liability only if not used to designate source.
Whereas on the Ninth Circuit’s view, parody (and so forth)
is exempt always—regardless whether it designates source.
The expansive view of the “noncommercial use” exclusion
effectively nullifies Congress’s express limit on the fair-use
exclusion for parody, etc. Just consider how the Ninth Cir-
cuit’s construction played out here. The District Court had
rightly concluded that because VIP used the challenged
marks as source identifiers, it could not benefit from the
fair-use exclusion for parody. See App. to Pet. for Cert.
105a; supra, at 8–9, 17–18. The Ninth Circuit took no issue
with that ruling. But it shielded VIP’s parodic uses any-
way. In doing so, the court negated Congress’s judgment
about when—and when not—parody (and criticism and
commentary) is excluded from dilution liability.
IV
Today’s opinion is narrow. We do not decide whether the
Rogers test is ever appropriate, or how far the “noncommer-
cial use” exclusion goes. On infringement, we hold only that
Rogers does not apply when the challenged use of a mark is
as a mark. On dilution, we hold only that the noncommer-
cial exclusion does not shield parody or other commentary
when its use of a mark is similarly source-identifying. It is
no coincidence that both our holdings turn on whether the
use of a mark is serving a source-designation function. The
Lanham Act makes that fact crucial, in its effort to ensure
that consumers can tell where goods come from.
For the reasons stated, we vacate the judgment below
and remand for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 599 U. S. ____ (2023) 1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–148
_________________
JACK DANIEL’S PROPERTIES, INC., PETITIONER v.
VIP PRODUCTS LLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 8, 2023]
JUSTICE SOTOMAYOR, with whom JUSTICE ALITO joins,
concurring.
I join the Court’s opinion in full. I write separately to
emphasize that in the context of parodies and potentially
other uses implicating First Amendment concerns, courts
should treat the results of surveys with particular caution.
As petitioner did here, plaintiffs in trademark infringement
cases often commission surveys that purport to show that
consumers are likely to be confused by an allegedly infring-
ing product. Like any other evidence, surveys should be un-
derstood as merely one piece of the multifaceted likelihood
of confusion analysis. See, e.g., Uncommon, LLC v. Spigen,
Inc., 926 F. 3d 409, 425 (CA7 2019). Courts should also
carefully assess the methodology and representativeness of
surveys, as many lower courts already do. See, e.g., Water
Pik, Inc. v. Med-Systems, Inc., 726 F. 3d 1136, 1144–1150
(CA10 2013); Starbucks Corp. v. Wolfe’s Borough Coffee,
Inc., 588 F. 3d 97, 117 (CA2 2009).
When an alleged trademark infringement involves a par-
ody, however, there is particular risk in giving uncritical or
undue weight to surveys. Survey answers may reflect a
mistaken belief among some survey respondents that all
parodies require permission from the owner of the parodied
mark. Some of the answers to the survey in this case illus-
trate this potential. See App. 81–82, n. 25 (“ ‘I’m sure the
2 JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC
SOTOMAYOR, J., concurring
dog toy company that made this toy had to get [Jack Dan-
iel’s] permission and legal rights to essentially copy the[ir]
product in dog toy form’ ”); ibid. (“ ‘The bottle is mimicked
after the Jack Daniel BBQ sauce. So they would hold the
patent therefore you would have to ask permission to use
the image’ ”); see also Anheuser-Busch, Inc. v. Balducci Pub-
lications, 28 F. 3d 769, 772–773, 775 (CA8 1994) (describing
a similar situation). Plaintiffs can point to this misunder-
standing of the legal framework as evidence of consumer
confusion. Cleverly designed surveys could also prompt
such confusion by making consumers think about complex
legal questions around permission that would not have
arisen organically out in the world.
Allowing such survey results to drive the infringement
analysis would risk silencing a great many parodies, even
ones that by other metrics are unlikely to result in the con-
fusion about sourcing that is the core concern of the Lan-
ham Act. See ante, at 4, 10, 14. Well-heeled brands with
the resources to commission surveys would be handed an
effective veto over mockery. After all, “[n]o one likes to be
the butt of a joke, not even a trademark.” 6 J. McCarthy,
Trademarks and Unfair Competition §31:153 (5th ed.
2023). This would upset the Lanham Act’s careful balanc-
ing of “the needs of merchants for identification as the pro-
vider of goods with the needs of society for free communica-
tion and discussion.” P. Leval, Trademark: Champion of
Free Speech, 27 Colum. J. L. & Arts 187, 210 (2004). Courts
should thus ensure surveys do not completely displace other
likelihood-of-confusion factors, which may more accurately
track the experiences of actual consumers in the market-
place. Courts should also be attentive to ways in which sur-
veys may artificially prompt such confusion about the law
or fail to sufficiently control for it.
Cite as: 599 U. S. ____ (2023) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 22–148
_________________
JACK DANIEL’S PROPERTIES, INC., PETITIONER v.
VIP PRODUCTS LLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 8, 2023]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE BARRETT join, concurring.
I am pleased to join the Court’s opinion. I write sepa-
rately only to underscore that lower courts should handle
Rogers v. Grimaldi, 875 F. 2d 994 (CA2 1989), with care.
Today, the Court rightly concludes that, even taken on its
own terms, Rogers does not apply to cases like the one be-
fore us. But in doing so, we necessarily leave much about
Rogers unaddressed. For example, it is not entirely clear
where the Rogers test comes from—is it commanded by the
First Amendment, or is it merely gloss on the Lanham Act,
perhaps inspired by constitutional-avoidance doctrine? Id.,
at 998. For another thing, it is not obvious that Rogers is
correct in all its particulars—certainly, the Solicitor Gen-
eral raises serious questions about the decision. See Brief
for United States as Amicus Curiae 23–28. All this remains
for resolution another day, ante, at 13, and lower courts
should be attuned to that fact.