Marty Schwimmer Writes on “Expressive Works” for World Trademark Review

In an article titled “Dog toy or art? What is expressive work for Rogers artistic relevance test?” published by World Trademark Review on May 21, 2022, Marty Schwimmer tackled the Ninth Circuit decision in VIP Products, Inc v Jack Daniel’s Properties, Inc., 953 F.3d 1170 (9th Cir. 2020). In the so-called “Bad Spaniels” case, the Ninth Circuit held that a dog toy shaped to resemble a bottle of Jack Daniel’s whiskey and bearing labels that parody the Jack Daniel’s trade dress was an expressive work under the Rogers test. In his analysis of the Bad Spaniels case and a subsequent decision in the Southern District of New York, Marty seeks to clarify the Rogers test, beginning with the threshold question: what is an expressive work?