Tom Polcyn and Alex Weidner authored an article for World IP Review titled, "Will the Jack Daniel's Case Cause "Lotso" Issues for Disney?," published July 13, 2023.
The article discusses the potential impact of the Supreme Court's recent ruling in the Jack Daniel's Properties, Inc. v. VIP Prod. LLC on the newly remanded Diece-Lisa v. Disney case, involving trademark infringement allegations related to the "Lots-o'-Huggin' Bear" character from Toy Story 3. The Jack Daniel's decision narrowed the scope of the Rogers test, making it easier for trademark plaintiffs to pursue claims. However, the application of the Jack Daniel's decision to the Diece-Lisa v. Disney case remains uncertain, particularly concerning claims based on merchandise and media.
Polcyn and Weidner explore the implications of the ruling for future trademark litigation, striking a balance between First Amendment rights and the protection of trademarks. They noted, "The Jack Daniel's decision has created greater uncertainty for parodists and creators of expressive works, who will now need to ask themselves if the use of another's trademark, or obvious variant thereof, is used "solely" in an expressive manner (for example, in parody or critical commentary about the trademark owner or its genre), or if it is really just being used to grab attention and sell products."
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