Rogers have confined it to similar cases, in which a trademark is used not to designate a work’s source, but solely to perform some other expressive function. See, e.g., Mattel, Inc. v. MCA Records, Inc., 296 F. 3d 894, 901 (use of the Barbie name in band’s song “Barbie Girl” was “not [as] a source identifier”). The same courts, though, routinely conduct likelihood-of-confusion analysis in cases where trademarks are used as trademarks—i.e., to designate source. See, e.g., Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 414–415 (parodic pet perfumes did not trigger Rogers because defendant’s use of Tommy Hilfiger’s mark was “at least in part” for “source identification”). Thus, whatever Rogers’ merit—an issue on which this Court takes no position—it has always been a cabined doctrine: It has not insulated from ordinary trademark scrutiny the use of trademarks as trademarks.
That conclusion fits trademark law, and reflects its primary mission. Consumer confusion about source—trademark law’s cardinal sin—is most likely to arise when someone uses another’s trademark as a trademark. In such cases, Rogers has no proper application. Nor does that result change because the use of a mark has other expressive content. Under the Ninth Circuit’s approach, Bad Spaniels was automatically entitled to Rogers’ protection because it “communicate[d] a humorous message.” 953 F. 3d 1170, 1175. On that view, few trademark cases would ever get to the likelihood-of-confusion analysis. And the Ninth Circuit was mistaken to believe that the First Amendment demanded such a result. When a mark is used as a source identifier, the First Amendment does not demand a threshold inquiry. Pp. 10–17.
(b) In this case, VIP conceded that it used the Bad Spaniels trademark and trade dress as source identifiers. And VIP has said and done more in the same direction with respect to Bad Spaniels and other similar products. The only question remaining is whether the Bad Spaniels trademarks are likely to cause confusion. Although VIP’s effort to parody Jack Daniel’s does not justify use of the Rogers test, it may make a difference in the standard trademark analysis. This Court remands that issue to the courts below. Pp. 17–19.
2. The Lanham Act’s exclusion from dilution liability for “[a]ny noncommerical use of a mark,” §1125(c)(3)(C), does not shield parody, criticism, or commentary when an alleged diluter uses a mark as a designation of source for its own goods. The Ninth Circuit’s holding to the contrary puts the noncommercial exclusion in conflict with the statute’s fair-use exclusion. The latter exclusion specifically covers uses “parodying, criticizing, or commenting upon” a famous mark owner, §1125(c)(3)(A)(ii), but does not apply when the use is “as a designation of source for the person’s own goods or services,” §1125(c)(3)(A). Given
