Sotomayor, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 22–148
JACK DANIEL’S PROPERTIES, INC., PETITIONER v. VIP PRODUCTS LLC
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 8, 2023]
Justice Sotomayor, with whom Justice Alito joins, concurring.
I join the Court’s opinion in full. I write separately to emphasize that in the context of parodies and potentially other uses implicating First Amendment concerns, courts should treat the results of surveys with particular caution. As petitioner did here, plaintiffs in trademark infringement cases often commission surveys that purport to show that consumers are likely to be confused by an allegedly infringing product. Like any other evidence, surveys should be understood as merely one piece of the multifaceted likelihood of confusion analysis. See, e.g., Uncommon, LLC v. Spigen, Inc., 926 F. 3d 409, 425 (CA7 2019). Courts should also carefully assess the methodology and representativeness of surveys, as many lower courts already do. See, e.g., Water Pik, Inc. v. Med-Systems, Inc., 726 F. 3d 1136, 1144–1150 (CA10 2013); Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 588 F. 3d 97, 117 (CA2 2009).
When an alleged trademark infringement involves a parody, however, there is particular risk in giving uncritical or undue weight to surveys. Survey answers may reflect a mistaken belief among some survey respondents that all parodies require permission from the owner of the parodied mark. Some of the answers to the survey in this case illustrate this potential. See App. 81–82, n. 25 (“ ‘I’m sure the
