On March 22, 2023, the United States Supreme Court will hear arguments in a trademark case: the Jack Daniels dog toy case, Jack Daniel’s Properties v. VIP Products LLC. I am admittedly excited the Supreme Court is hearing a trademark case!
In a nutshell, VIP Products created a dog toy that was made to look like the famous Jack Daniel’s trade dress.
Jack Daniels is a whiskey company that has a distinctive bottle and labeling. They have several registered trademarks such as one for the bottle itself. The label with the words “Jack Daniel’s Tennessee Whiskey Old No. 7 Brand Sour Mash” with filigree around the border is also registered as a trademark.
VIP Products makes dog toys and they created a rubber squeaky toy to essentially parody the Jack Daniel’s bottle. Its shape mimics the Jack Daniel’s bottle and label. It’s called Bad Spaniels and says “The Old No. 2 on your Tennessee Carpet.” It's also 43% poo by volume. And 100% smelly. This is clearly a joke and meant to be humorous.
Jack Daniels, though, is not amused. It claims to “love dogs” and “appreciate a good joke,” but it “likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop.”
The issue here is whether a product that copies a registered trademark in a humorous way receives a higher level of First Amendment protections for speech or artistic expression, or should there just be a normal likelihood-of-confusion analysis? The Supreme Court will also consider whether selling a humorous mark that copies someone else’s mark would be subject to dilution and tarnishment claims.
In this case, it’s obvious that the dog toy is not made by Jack Daniels, but dilution means the owner of a trademark can be harmed even if there is no confusion. Jack Daniels is arguing that associating the famous mark with poop dilutes the mark. Tarnishment means that a famous mark’s reputation is harmed because of the similarities between a mark and the famous mark.
Some well-known brands such as Nike, Levi Strauss & Company, and Campbell Soup Company filed what’s known as amicus briefs with the Supreme Court. An amicus brief is a brief filed by a non-party who may have an interest in the outcome of the case. The United States government also filed a brief supporting Jack Daniels.
I may be biased because I’m a dog lover and I don’t drink whiskey. I’m also a huge fan of the Bark Box company and their fictitious trademarks. I wonder if a ruling in favor of Jack Daniels would mean an end to the really humorous dog toys that I (and Barry) have come to love?
But does Jack Daniels have a point that poop jokes go too far? Would a ruling in favor of VIP Products open the floodgates to inappropriate parodies and crude humor? I don’t have the answers to these questions, but the Supreme Court should soon!
Please note that the information contained in this article is intended for general informational purposes only and not as specific legal advice. The facts of your situation may differ from this general information. It is not intended to and does not in any way establish an attorney-client relationship.
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