Trademark Fair Use is No Joke

This Article examines how the Supreme Court's 2023 decision in Jack Daniel's Properties v. VIP Products reveals the limitations of using parody as a framework for resolving tensions between trademark rights and free speech. While the Court's ruling narrowed trademark protection in certain instances and acknowledged the importance of protecting parodic speech, it ultimately avoided addressing fundamental questions about the relationship between trademark law and the First Amendment. The Article argues that courts' reliance on parody as a paradigmatic case of permissible trademark use has become a distraction that prevents necessary reform of trademark law to better accommodate First Amendment interests through a broader fair use defense. This overemphasis on parody as a safe harbor for expressive uses of trademarks has allowed courts to sidestep the development of a comprehensive framework for balancing trademark rights against free speech concerns.