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Ray Bogan

Political Correspondent

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Supreme Court hears trademark case on Jack Daniel’s dog toy

Mar 22, 2023

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Ray Bogan

Political Correspondent

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Is it a trademark infringement or a parody? That’s the question the Supreme Court will answer about a dog toy’s resemblance to a bottle of Jack Daniel’s.

VIP Products, which makes a squeaky toy shaped exactly like a bottle of Old No. 7 Tennessee Whiskey, argues the product is a joke. Their product is “43% poo by volume,” Jack Daniel’s is “40% alcohol by volume.” VIP contends it can make the toy the same way “Weird Al” Yankovic can make a parody of a song or SNL can parody celebrities.

In our popular culture, iconic brands are another kind of celebrity. People are constitutionally entitled to talk about celebrities and, yes, even make fun of them,” Bennett Evan Cooper, the attorney representing VIP Products told the justices.

Jack Daniel’s argued it doesn’t want its customers “confused or associating its fine whiskey with dog poop.” The company also said VIP Products is not just making a joke, it’s mimicking Jack Daniel’s iconic marks in a way that misleads customers and allows the dog toy maker to profit from its hard-earned good will.

A crux of the case is whether the toy creates a likelihood of confusion.

“It’s not whether you get the joke, you get that somebody other than the brand wasn’t making the joke,” Lisa Schiavo Blatt, who represents Jack Daniel’s, told the justices.

Justice Samuel Alito casts doubt on the confusion argument. He said most reasonable people are not going to believe Jack Daniel’s would approve a spoof of its product in the form of dog poop in a bottle.

“You think the CEO is going to say ‘that’s a great idea, we’re going to produce that thing,’” Alito asked.

Blatt conceded no. 

“A reasonable person would not think that Jack Daniel’s had approved this,” Alito said.

Multiple justices also spoke about First Amendment free speech protections for artistic expression.

“The way we prevent infringing [artists] rights is by making sure that trademark holders are only able to come in and accuse them of problems if they, the artists, are trying to designate the source of their products by using the mark,” Justice Ketanji Brown Jackson said.

The justices also questioned the use of Jack Daniel’s image and likeness as a parody and whether or not this really is a joke at all.

“Maybe I just have no sense of humor, but what’s the parody?” Justice Elena Kagan asked.

“The parody is to make fun of marks that take themselves seriously,” Cooper responded.  

“So you’re just saying anytime you go out after or you use the mark of a large company, it’s a parody, just by definition,” Kagan said. 

If the justices rule against VIP products, it could impact an entire line of the company’s toys that spoof other brands like Corona, Coke, 7Up, and Bacardi. 

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Is it a trademark infringement or a parody? That’s the question the Supreme Court will answer about a dog toy’s resemblance to a Jack Daniels bottle. 

On the left is Jack Daniels Old No. 7 Tennessee Whiskey. On the right is Bad Spaniels The Old Number 2 on your Tennessee Carpet. Jack Daniels is 40% alcohol by volume, the toy is 43% poo by volume. 

 

The company argues this is a joke, the same way Weird al Yankovic can make a parody of a song or South Park/SNL can parody celebrities. 

 

Bennett Evan Cooper:  46:13 in our popular culture. Iconic brands are another kind of celebrity. People are constitutionally entitled to talk about celebrities and yes even make fun of them. 

 

Jack Daniels argued they don’t want their customers quote “confused or associating its fine whiskey with dog poop”. The company also said VIP Products is not just making a joke, it’s mimicking Jack Daniel’s iconic marks in a way that misleads customers and allows the dog toy maker to profit from their hard-earned good will. One of the crux’s of the case is whether the toy creates a Likelihood of confusion. 

 

Blatt:It’s not whether you get the joke, you get that somebody other than the brand wasn’t making the joke.” 

 

Justice Alito cast doubt on the confusion argument, saying most reasonable people are not going to believe Jack Daniels would approve a spoof of their product in the form of dog poop in a bottle. 

 

Alito: “You think the CEO is going to say that’s a great idea, we’re going to produce that thing.”

 

Lisa Schiavo Blatt: No 

Alito: “a reasonable person would not think that Jack Daniels had approved this.”

 

Multiple Justices also spoke about First Amendment free speech protections for artistic expression. 

KBJ: “The way we prevent infringing their rights is by making sure that trademark holders are only able to come in and accused them of problems. If they are they the artists are power or trying to designate the source of their products. By using the mark,”

 

The Justices also questioned the use of Jack Daniels image and likeness as a parody and whether or not this really is a joke at all. 

Kagan: “Maybe I just have no sense of humor, but what’s the parody?”

 

Bennett Evan Cooper: “the parody is to make fun of marks that take themselves seriously.” 

 

Kagan: “So you’re just saying anytime you go out after or you use the mark of a large company, it’s a parody, just by definition”

 

If the justices rule against VIP products, it could impact an entire line of their toys that spoof other brands like Corona, Coke, 7 up, and Bacardi. Straight from DC, I’m Ray Bogan.