Federal trademark law can be a slippery slope to navigate. The Supreme Court dove into a trademark case that revolved around a poop-themed dog toy that resembled a Jack Daniel’s bottle and left them in fits of laughter.
The case is centered around a “Bad Spaniels Silly Squeaker” toy that was created by VIP Products and is quite similar to Jack Daniel’s whiskey bottles. Because of this similarity, the distiller sued the company over the toy for violating the federal trademark law.
While the product is meant to be humorous, many justices didn’t get the joke. “What is there to it? What is the parody here?” Justice Elena Kagan asked an attorney for the toy company. “Because maybe I just have no sense of humor. But what’s the parody?”
Naturally, this led those in the courtroom to burst into giggles, which they did on multiple occasions. Justice Samuel Alito’s question led to another round of laughs when he asked how likely it was that a reasonable person would believe Jack Daniel’s approved the toy at hand or a similar theoretical toy that joked it contained “dog urine.”
The toy and the whiskey bottle are quite similar, as VIP’s “Bad Spaniels Silly Squeaker” toy has the same shape as a Jack Daniel’s bottle. The plastic bottle has a similar font style and uses a black label. VIP also borrows Jack Daniel’s “Old No. 7 Brand Tennessee Sour Mash Whiskey” to sell “The Old No. 2 On Your Tennessee Carpet,” a reference to dog poop. And it changes the liquor bottle’s “40% ALC. BY VOL. (80 PROOF)” with “43% POO BY VOL.” and “100% SMELLY.”
The toy does note that it’s “not affiliated with Jack Daniel Distillery” but that wasn’t enough to keep Jack Daniel’s from suing the dog toy company.
A district court did rule in favor of Jack Daniel’s, finding that the toy infringed on the distiller’s trademark. But an appeals court later sided with VIP Products, invoking the so-called Rogers Test. Since VIP’s use of Jack Daniel’s trademark was non-commercial and done humorously for an “expressive work,” it’s technically protected by the First Amendment.
Attorneys for Jack Daniel’s told the justices in court papers that the appeals court ruling “gives copycats free license to prey on unsuspecting consumers and mark holders.” “No one disputes that VIP is trying to be funny. But alcohol and toys don’t mix well, and the same is true for beverages and excrement,” they wrote. “The next case could involve more troubling combinations — food and poison, cartoon characters and pornography, children’s toys and illegal drugs and so on.”
VIP disputed that consumers can clearly distinguish between the two products. They also claimed that it “has never sold whiskey or other comestibles, nor has it used ‘Jack Daniel’s’ in any way (humorously or not). It merely mimicked enough of the iconic bottle that people would get the joke.”
It’s all up in the air at this point.