The first part of that definition, iden- tifying the kind of things covered, is broad: It encompasses Cite as: 599 U. S. ____ (2023) Opinion of the Court words (think “Google”), graphic designs (Nike’s swoosh), and so-called trade dress, the overall appearance of a prod- uct and its packaging (a Hershey’s Kiss, in its silver wrap- per).
Consistent with trademark law’s basic purpose, the lead criterion for registration is that the mark JACK DANIEL’S PROPERTIES, INC. v. VIP PRODUCTS LLC Opinion of the Court “in fact serve as a ‘trademark’ to identify and distinguish goods.” 3 McCarthy §19:10 (listing the principal register’s eligibility standards).
Cite as: 599 U. S. ____ (2023) Opinion of the Court had produced and distributed a film by Federico Fellini ti- tled “Ginger and Fred” about two fictional Italian cabaret dancers (Pippo and Amelia) who imitated Ginger Rogers and Fred Astaire.
So, for example, when the toymaker Mattel sued a band over the song “Barbie Girl”— with lyrics including “Life in plastic, it’s fantastic” and “I’m a blond bimbo girl, in a fantasy world”—the Ninth Circuit applied Rogers.
And similarly, the Sec- ond Circuit (indeed, the judge who authored Rogers) re- jected a motorcycle mechanic’s view that his modified ver- sion of Harley Davidson’s bar-and-shield logo was an Cite as: 599 U. S. ____ (2023) Opinion of the Court expressive parody entitled to Rogers’ protection.