Jack Daniel's Properties, Inc. v. VIP Products LLC

JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE BARRETT join, concurring.¶

I am pleased to join the Court’s opinion. I write separately only to underscore that lower courts should handle Rogers v. Grimaldi , 875 F. 2d 994 (CA2 1989), with care. Today, the Court rightly concludes that, even taken on its own terms, Rogers does not apply to cases like the one before us. But in doing so, we necessarily leave much about Rogers unaddressed. For example, it is not entirely clear where the Rogers test comes from—is it commanded by the First Amendment, or is it merely gloss on the Lanham Act, perhaps inspired by constitutional-avoidance doctrine? Id. , at 998. For another thing, it is not obvious that Rogers is correct in all its particulars—certainly, the Solicitor General raises serious questions about the decision. See Brief for United States as Amicus Curiae 23–28. All this remains for resolution another day, ante , at 13, and lower courts should be attuned to that fact.¶