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.[1]
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 dramatically part ways with the Ninth Circuit, which thought that because Bad Spaniels “communicates a humorous message,” 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 trademarks are often expressive, in any number of ways. Consider how one liqueur brand’s trade dress (beyond identifying source) tells a story, with a bottle in the shape of a friar’s habit connoting the product’s olden monastic roots:
- ↑ 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 dissimilarity 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 examples).
