Jack Daniel's vs. a dog toy?

·4 min read
A Jack Daniel's bottle and knockoff dog toy.
A Jack Daniel's bottle and knockoff dog toy. Jessica Gresko/AP Photo

The Supreme Court is considering a case involving a clash between Jack Daniel's whiskey and a dog squeaky toy that could have longstanding effects on American trademark and branding laws. Here's everything you need to know: 

What are the basics of the case?

Jack Daniel's, the iconic Tennessee-based whiskey manufacturer, is suing VIP Products LLC, the second-largest maker of dog toys in the country, over a squeaky toy sold by VIP that is a direct parody of a Jack Daniel's whiskey bottle. The toy is shaped and colored like a Jack Daniel's bottle, but features a picture of a dog and the words "Bad Spaniels" in place of "Jack Daniel's." The toy has also replaced the actual Jack Daniel's "40 percent alcohol by volume" wording with "43 percent poo by volume, 100 percent smelly."

The toy is part of VIP's "Silly Squeakers" line, which parodies common beverages as dog toys. This includes other toys that are clear parodies of alcohol bottles, including beer brands, whiskey, tequila, vodka, and gin.

The main question in the case is whether VIP should be held responsible for "potentially misleading customers into associating the product with the whiskey maker or tarnishing the company's famous trademark," Reuters explains, with Jack Daniel's claiming the knockoff toy constitutes a violation of brand protections.

Lawyers for Jack Daniel's argue that VIP's toy is detrimental to the whiskey company's brand, writing in their brief that VIP "sells products mimicking Jack Daniel's iconic marks and trade dress that mislead consumers, profit from Jack Daniel's hard-earned goodwill, and associate Jack Daniel's whiskey with excrement." VIP, meanwhile, says the opposite is true, and writes in its own briefing that "freedom of speech begins with freedom to mock." The company insists it is not violating any laws because "Bad Spaniels" is not its product — the dog toy itself is. "VIP uses a pretend trademark and pretend trade on a pretend label on a pretend bottle full of pretend contents," it says.

Where does the case stand?

Jack Daniel's has already lost a lower court case on the issue, with the Ninth Circuit Court of Appeals ruling that while the company's own image was protected under trademark laws, VIP had the right to parody it under the First Amendment. The circuit court writes that while VIP used "Jack Daniel's trade dress and bottle design to sell Bad Spaniels," it also had an inherent right to convey humor through the spoof.

Both the Biden administration and the Justice Department, however, sided with Jack Daniel's after the whiskey brand appealed the circuit ruling to the Supreme Court. In a reverse view of the Ninth Court's decision, "the First Amendment does not confer any right to use another person's trademark, or a confusingly similar mark, as a source identifier for goods sold in commerce," the DOJ writes in court papers, per CNN.

The conservative-majority members of the Supreme Court have often been outspoken on free speech issues. In recent years, "concern about the threat that private corporate power poses to freedom of speech has tended to be raised by conservatives," writes the University of Chicago Law Review.

How could the case alter the trademark landscape?

There "are very serious questions about the First Amendment," Vox says. "And about how far courts should go in second-guessing Congress's decisions about how to balance the needs of the marketplace with the demands of free speech." Given that trademark law necessarily limits free speech, the outlet adds, "the marketplace would function less reliably if consumers cannot readily identify which products are genuine ... and which ones are knockoffs."

"Big legal guns have weighed in," Nina Totenberg, the Supreme Court correspondent for NPR, writes, "predicting economic doom if 'Bad Spaniels' prevails." Former Solicitor General Gregory Garre argued that giving VIP a free pass on trademark infringement "would deeply destabilize an economic system that is rightly the envy of the world."

Large companies are coming to the defense of Jack Daniel's. If the Ninth Circuit ruling stands, it "opens the door to a new global counterfeit threat: an influx of infringing products meriting First Amendment protection because their creators clear a ground-level hurdle of affixing minimal 'humorous' expression onto them," writes clothing company American Apparel along with Nike, Campbell's Soup, and other companies in an amicus brief.

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