The US Supreme Court took a bite at a case Wednesday where Jack Daniel’s believes a dog toy that parodied the famed whiskey bottle is barking up the wrong tree.
The crux of the case explores whether the pun-laden “Bad Spaniels” vinyl chew toy wrongly ripped off the trademarked whiskey bottle from the Tennessee-based company.
The nation’s highest court must consider if the parody is “expressive work” protected by the First Amendment against Jack Daniel’s argument that the squeaky toy infringes on trademark rights.
The poop-themed toy has the same shape as the whiskey bottle with a label on the front that reads “The Old No. 2 on Your Tennessee Carpet” instead of words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey” that is at the front of the actual whiskey product.
The parody also flashes a dog’s face and jokes it’s “43% Poo by Vol” and “100% Smelly.” The original bottle notes it’s 40% alcohol.
While the dog toy has a disclaimer that says it is not affiliated with Jack Daniel Distillery, Jack Daniel’s thinks the association hits too close to home.
“Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop,” the company’s lawyer Lisa Blatt wrote in a briefing.
The company of the dog toy, VIP Products, has other toys that play on well-known drinks including Mountain Drool, which parodies Mountain Dew, and Heini Sniff’n, which parodies Heineken. The Bad Spaniels toy has been on sale since 2014.
VIP Products lawyer Bennett E. Cooper wrote in a briefing Jack Daniel’s legal action, “seeks to use the Lanham Act to muzzle even VIP Products LLC’s playful dog-toy parody.”
The Lanham Act is the federal statute that handles trademark law.
During the hearing Wednesday, Conservative Justice Samuel Alito told Jack Daniel’s legal team he was concerned over the First Amendment implications of their argument.
“Could any reasonable person think that Jack Daniel’s had approved this use of the mark?” Alito said.
Lower courts ruled in favor of VIP Products after applying the so-called Rogers test that involved actress Ginger Roberts and director Federico Fellini in 1989. It gives artists the green light to use another’s trademark when there is artistic relevance tied to the work and does not confuse consumers about where it came from.
Liberal Justice Elena Kagan, who seemed more likely to side with Jack Daniel’s, bluntly asked, “Maybe I just have no sense of humor, but what’s the parody?”
Known for her dry wit, she suggested the chew toy is an “ordinary commercial product” that is trading on the look of the liquor company’s bottle.
Liberal justice Ketanji Brown Jackson pressed VIP Products lawyers if the Rogers test was too lax toward “expressive works” that leads to confusion.
“It sounds like what you’re doing is saying when you’re dealing with an expressive work, we get a pass under the Lanham Act,” said Jackson.
A decision is expected in June.
With Post wires