by Keon Park*
With the rise of the modern trademark that veers into the realm of constitutional speech rights, circuit courts have adopted varying approaches to balance competing trademark interests and free speech protections. The majority approach to striking this judicial balance among circuit courts is governed by the Rogers test, a threshold inquiry that, if met, almost invariably calls for dismissal of trademark infringement claims for expressive works. However, the Supreme Court in Jack Daniel’s Properties Inc. v. VIP Products LLC partially ruled against the use of the Rogers test for marks used to identify the source of a product. While circuit courts have continued to apply Rogers in other contexts, several have called for an alternate approach, questioning Rogers’ validity as a whole. But given the rise of non-traditional purposes of trademarks in the modern era of advertising where brands such as Rolls-Royce are associated with quality rather than solely signifying the maker of the car, courts should continue to use the Rogers balancing test to protect the expressive speech rights of the general public.