Amicus Brief

Vans, Inc., VF Outdoors LLC v. MSCHF Product Studio, Inc.

Published: June 24, 2022


United States Court of Appeals for the Second Circuit

Our Position

The Rogers v. Grimaldi test should apply only to traditional expressive works—not ordinary consumer products. The Second Circuit should provide a gatekeeping definition of “expressive works.” This would give courts and litigants more certainty when considering whether the strong First Amendment protections of Rogers should apply or whether traditional trademark principles are more appropriate to better balance trademark rights with free speech. INTA asserts that an “expressive work” should be defined as one where the expression cannot be removed from the product without it ceasing to be the same product, i.e., that the expression is conceptually inseparable from the product.