WASHINGTON — The Supreme Court will debate Wednesday whether Jack Daniel’s should grin and put up with humorous dog poop-themed toys that resemble its iconic whiskey bottles.
The judges, taking a break from some of the more weighty issues ahead of them on cases involving race, voting and LGBTQ rights, will hear oral arguments about whether the toys made by VIP Products LLC violate trademark law.
VIP says its products, including the “Bad Spaniels” toy in the shape of a whiskey bottle, are obvious parodies and should therefore be protected as free speech under the First Amendment.
The toy in question has a label on the neck that says “Old No. 2”, referring to the “Old No. 7” label on Jack Daniel’s bottles. It also says “Old No. 2 on your Tennessee Carpet” on the body, referencing the main label “Old No. 7 Tennessee Sour Mash Whiskey” on the whiskey bottles.
The whiskey maker, describing the offending products as “poop-themed dog toys,” denies there’s potential for confusion, meaning the product violates trademark law.
“Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s loves its customers even more and doesn’t want them to get confused or associate its fine whiskey with dog shit,” the company’s lawyer wrote. , Lisa Blatt, in court papers.
The problem, she added, is that VIP “sells products that mimic Jack Daniel’s iconic features and trade dress that mislead consumers, take advantage of Jack Daniel’s hard-earned goodwill and associate Jack Daniel’s whiskey with excrement.”
VIP’s attorney, Bennett Cooper, wrote in court documents that Jack Daniel’s, which is owned by major wine and spirits producer Brown-Forman, is trying to suppress free speech by “weaponizing” trademark law.
“The Bad Spaniels Silly Squeaker toy is unquestionably a bona fide (and successful) parody,” Cooper wrote. a parody embodied in a solid vinyl dog toy with a squeaker.”
The 9th US Circuit Court of Appeals in 2020 ruled in favor of VIP Products, saying the toys are protected by the First Amendment, prompting Jack Daniel’s to seek further Supreme Court review.
Several companies, including Nike Inc., Campbell Soup Co. and American Apparel, filed statements supporting Jack Daniel’s, saying the appeals court’s interpretation of the law threatened the protection of trademarks that shield the value of iconic brands. The Biden administration also supports the whiskey maker.
Free speech advocates, including the Electronic Frontier Foundation, filed statements supporting VIP, citing the importance of people being able to comment on and mock well-known brands.