Document Type

Article

Publication Date

4-20-2026

Abstract

This Article challenges the Supreme Court's recent assurance that trademark parody is adequately protected under ordinary infringement doctrine without the need for special speech safeguards. In Jack Daniel's Properties, Inc. v. VIP Products LLC, the Court curtailed the principal First Amendment defense for expressive trademark uses while predicting that parodies would nonetheless prevail under the likelihood of confusion test. This Article shows why that prediction is mistaken. Drawing on recent case law and trademark doctrine, it identifies four structural vulnerabilities that now confront parody: the expansion of "trademark use" as a gatekeeping device that excludes parodists from speech-protective analysis; courts' reliance on consumer surveys that mistake legal beliefs about permission for actionable source confusion; the routine application of infringement factors that disregard expressive purpose; and judicial demands that parodies be "successful," obvious, or directly targeted to merit protection. Together, these developments systematically bias trademark law against subtle, critical, and uncomfortable forms of expression. The Article concludes that without doctrinal recalibration, trademark law risks becoming a regime of private censorship over cultural meaning and proposes concrete adjustments to preserve parody as a constitutionally protected form of speech.

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