Abstract
As the fashion industry—including the sneaker industry housed within it—continues to go through the motions of collectively flocking out, and then collectively flocking again to the newest innovations in the world of wearables, the landscape of laws to protect and promote those innovations expands as well, mainly in the area of intellectual property law. Although copyright, trademark, and patent law can cover innovations in the fashion industry, this Note centers its analysis on trademark law. Trademark law has been through notable change in recent years because of the United States Supreme Court’s 2023 decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC. The holding in Jack Daniel’s marked a new chapter of intellectual property jurisprudence, as indicated by the Court’s limitation of the landmark case, Rogers v. Grimaldi, that set forth the modern expressive use test. Although Jack Daniel’s did not pertain to the fashion industry, the Court’s decision nonetheless impacted the sneaker industry because a Second Circuit case involving sneakers, Vans, Inc. v. MSCHF Product Studio, Inc., was one of the first cases to apply the Jack Daniel’s holding. This Note takes particular interest in the sneaker industry’s strong cultural roots and customs and how recent changes in trademark jurisprudence have and will continue to operate in the sneaker industry. First, this Note argues that, based on the rule in Jack Daniel’s that limits access to the Rogers test for First Amendment-protected expressive use, and its application to the Van’s sneaker case, the Jack Daniel’s rule will limit speech that is embedded into sneakers and similar consumer goods where the good itself is an expression of speech. This Note further argues that, in sneaker cases specifically, the new Jack Daniel’s rule has the potential to preclude inquiries in Rogers that serve as an important buffer for defendants to have a chance at prevailing in expressive use cases.
Recommended Citation
Nitya Tolani, Sneakers, the Shoes that Talk the Talk and Walk the Walk: How Jack Daniel’s Properties, Inc. v. VIP Products Left its Footprint on Trademark Law and the Sneaker Industry, 47 SEATTLE U. L. REV. 1783 (2024).
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