The United States Supreme Court settles circuit split, ruling that juries determine if a party’s revisions to a trademark impart the same commercial impression to consumers.

Trademark owners often update their marks and logos to adapt to the times and changing market conditions, or just to freshen up the brand. Indeed, many of the most famous marks of our time have been periodically updated, such as the famous Pepsi-Cola mark.

However, if trademark owners change the mark too much, they can lose some of the long-standing rights associated with the older version of the mark, such as the greater protection and immunity from certain attacks afforded by the Lanham Act. Striking a balance between the competing need to update marks while still ensuring they retain their source identifying function, the courts have developed the tacking doctrine. Under this doctrine, if a modified mark creates the same, continuing commercial impression such that consumers consider the old and new marks as the same, the owner may be able to “tack” its use of the modified mark onto that of the original and thereby retain the benefits associated with the older mark.