Mar 22, 2023
Jack Daniel’s Calls Out ‘Bad Spaniels’ Dog Toy in Supreme Court Case
(Bloomberg) -- The US Supreme Court grappled with a trademark clash over a chewable dog toy that mimics the iconic Jack Daniel’s whiskey bottle, only with poop jokes.
In a lively argument over a lawsuit by the maker of the best-selling spirit Wednesday, the justices debated the intersection of trademark and free-speech rights, as well as the humor value of the “Bad Spaniels” toy at the center of the fight.
The toy’s creator contends the product, which includes references to “Old No. 2” and “43% POO BY VOL.,” is entitled to First Amendment protection as a parody of the century-old adult beverage. Not everyone got the joke.
“Maybe I just have no sense of humor,” Justice Elena Kagan said, “but what’s the parody?”
The nearly 90-minute session suggested many of the justices were seeking a middle ground as they sought to balance intellectual property rights against the First Amendment. Trademark owners are generally protected under the US Lanham Act from products likely to lead to consumer confusion about their source.
The justices are weighing an appeal from Jack Daniel’s Properties Inc., a Brown-Forman Corp. unit that makes the Tennessee whiskey. A federal appeals court ruled that Jack Daniel’s couldn’t enforce its trademarks against the dog toy’s maker, VIP Products LLC.
Justice Samuel Alito was among those who said the stances taken by Jack Daniel’s and the Biden administration could stifle important speech rights.
“You seem not to be very concerned about the free speech implications of the position that you’re taking,” Alito told Justice Department lawyer Matthew Guarnieri.
But other justices questioned how much free speech protection “Bad Spaniels” deserved given that in their view it was designed more to sell products than to make a statement.
“I’ve seen thousands of dog toys in the market, and you pick based on something uniquely funny about a particular toy,” Justice Sonia Sotomayor said. “So that’s proposing — you’re proposing a transaction.”
Kagan called the toy a “standard” commercial product.
“This is not a political T-shirt,” she said. “It’s not a film. It’s not an artistic photograph. It’s nothing of those things.”
Justice Ketanji Brown Jackson questioned how the court would decide which parodies were worthy of a carve-out from the trademark laws.
“Part of the problem that I’m struggling with is all of the uncertainty we have as to whether or not something is sufficiently expressive,” she said.
VIP Products’ lawyer, Bennett Cooper, said “Bad Spaniels” and other toys sold by the company were designed to poke fun at products that take themselves too seriously.
“In our popular culture, iconic brands are another kind of celebrity,” he said. “People are constitutionally entitled to talk about celebrities and, yes, even make fun of them.”
The lawyer for Jack Daniel’s, Lisa Blatt, said the Lanham Act “has no exceptions for expressive works.” That law “bars using marks for any goods when likely to cause confusion as to origin, sponsorship or approval,” she said.
The justices are scheduled to rule by late June in the case, Jack Daniel’s Properties v. VIP Products, 22-148.
(Updates with comments from Kagan, Jackson starting in 11th paragraph.)
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