The infringement issue is the more substantial. In addressing it, we do not decide whether the threshold inquiry applied in the Court of Appeals is ever warranted. We hold only that it is not appropriate when the accused infringer has used a trademark to designate the source of its own goods—in other words,
has used a trademark as a trademark. That kind of use falls within the heartland of trademark law, and does not receive special First Amendment protection. The dilution issue is more simply addressed. The use of a mark does not count as noncommercial just because it parodies, or otherwise comments on, another’s products. …

Today’s opinion is narrow. We do not decide whether the Rogers test is ever appropriate, or how far the “noncommercial use” exclusion goes. On infringement, we hold only that Rogers does not apply when the challenged use of a mark is as a mark. On dilution, we hold only that the noncommercial exclusion does not shield parody or other commentary when its use of a mark is similarly source-identifying. It is no coincidence that both our holdings turn on whether the use of a mark is serving a source-designation function. The Lanham Act makes that fact crucial, in its effort to ensure that consumers can tell where goods come from.

[Basically, the commercial use by VIP of the trademarks registered by Jack Daniels matter more than any exception for parody or social commentary. However, the court took care not to carve out new territory in this or any other direction. Justice Neil Gorsuch seems interested in looking at the Rogers test — named after Ginger Rogers, who once sued over the use of her name by a filmmaker — but agrees that this wasn’t the case to do it. VIP may have a real problem on its hands with this decision, as most of its dog toys ‘parody’ other iconic distiller brands. — Ed]