Jack Daniel’s Properties, Inc. v. VIP Products LLC threatened to upend the balance between trademark rights and expressive freedom. While not going as far as it might have, the opinion limits the ability of defendants to resist trademark claims that target artistic or noncommercial speech.

As important as this result is, we should not overlook a fundamental preliminary question. How could a dog chew toy that mocks Jack Daniel’s whiskey be the basis of a viable trademark infringement claim? Answering that question requires discussing deep issues within modern trademark law.

These antecedent questions were not directly before the Court, but they nonetheless bubbled up during the Jack Daniel’s oral argument, giving the Justices the opportunity to think out loud about them. Their questions thus provide a window not only on their views about this case but about trademark law in general.

Read in conjunction with the final opinion, however, the argument highlights the challenges generalist judges face in ensuring that trademark law serves the interests of consumers and citizens rather than brands and corporations. The oral argument thus tells us a lot about problems in trademark doctrine and foreshadows why the ultimate Jack Daniel’s opinion was unable to resolve them.