WASHINGTON — On Wednesday, the Supreme Court will decide whether Jack Daniel’s must grin and bear it or humorous dog “poop” toys that bear a resemblance with its iconic whiskey bottles.
The justices are taking a break from the more important issues they face in cases about race, voting, and LGBTQ rights. They now hear oral arguments as to whether toys made by VIP Products LLC have violated trademark law.
VIP claims its products, which include the “Bad Spaniels”, toy that looks like a whiskey-bottle, are obvious parodies. Accordingly, they should be protected under the First Amendment as free speech.
The neck label of the toy is “Old Number.” 2 refers to “Old No. Jack Daniel’s bottles have a 7” label. It also has the “Old Number. 2 on your Tennessee Carpet” is a reference to the “Old No. 7 Tennessee Sour Mash Whiskey main label on whiskey bottles
The whiskey maker described the products as “poop-themed dogs toys” and countered that there was a likelihood to confuse, which would mean the product is in violation of trademark law.
Jack Daniel’s is a dog lover and loves a good joke. Jack Daniel’s loves its customers more than anyone, and doesn’t want them to be confused or associate its fine whiskey with dog urine,” Lisa Blatt, the company’s lawyer, stated in court papers.
VIP sells fake Jack Daniel’s trade dress and iconic marks that mislead customers, profits from Jack Daniel’s hard-earned goodwill and associates Jack Daniel’s whiskey with excrement.
Bennett Cooper, VIP’s lawyer, stated in court papers, Jack Daniel’s is being used to suppress free speech by “weaponizing trademark law”, Brown-Forman is a major wine and spirits producer.
Cooper wrote that “The Bad Spaniels Silly Squeaker toys is indisputably an excellent-faith (and succesful) parody.” It involves a fake trademark and trade dress on a pretend package with pretend contents. The real product is actually a parody in solid-vinyl dog toys with squeakers.
The 9th U.S. Circuit Court of Appeals ruled in favor of VIP Products in 2020. It stated that VIP Products toys are protected by the First Amendment. This prompted Jack Daniels to request further review by the Supreme Court.
Many companies, including American Apparel and Campbell Soup Co., supported Jack Daniel’s. They claimed that the court’s interpretation of law threatened trademark protections that protect the value of iconic brands. The whiskey maker is also supported by the Biden administration.
Electronic Frontier Foundation and other free speech advocates filed briefs supporting VIP. They cited the importance of being able comment on and mock famous brands.
