U.S. Supreme Court justices heard oral arguments Wednesday in a case that revolves around the First Amendment, Jack Daniel’s whiskey and dog poop.
“This case involves a dog toy that copies Jack Daniel’s trademark and trade dress and associates its whiskey with dog poop,” said attorney Lisa S. Blatt on behalf of the whiskey company.
The toy features a label with the words “Bad Spaniels” and “the old No. 2,” as well as “on your carpet.”
Jack Daniel’s filed the suit against VIP Products LLC, a company that manufactures the dog toys. According to the National Association of Attorneys General, a district court granted the Tennessee-based distiller summary judgment on “several issues” included in the case.
“It held that Jack Daniel’s’ trade dress and bottle design were entitled to trademark protection, and VIP was not entitled to either fair-use or First Amendment defenses,” said the association.
Then, the case proceeded to a bench trial and the court found that Jack Daniel’s had established dilution by tarnishment and trademark infringement. After that, the Ninth Circuit affirmed the ruling in part, but also reversed it in part.
“It held that VIP’s dog toy was expressive work entitled to First Amendment protection unless Jack Daniel’s could show on remand that VIP’s use (1) is ‘not artistically relevant to the underlying work’ or (2) ‘explicitly misleads consumers as to the source or content of the work.’”
VIP owner Stephen Sacra’s “intent behind producing the Silly Squeakers line of toys was to develop a creative parody on existing products,” said a brief on the case. According to NPR, he got the idea for the Bad Spaniels parody when he was out for dinner and saw the back of a Jack Daniel’s bottle.
In 2013, the Phoenix New Times reported on two other legal disputes Sacra has landed in due to basing dog toys off alcoholic beverages. These included a lawsuit with Budweiser brewer Anheuser-Busch over a dog toy called “Buttwiper” and another lawsuit from Heineken of a “Heinie Sniff’n” dog toy.
Now, Jack Daniels has argued that “the Ninth Circuit erroneously grafted the atextual two-part test for First Amendment protection onto the Lanham Act,” to come to its conclusion regarding the Bad Spaniels toy.
“Pervasive copying and trading off a brand’s goodwill tends to confuse,” Blatt said Wednesday. “And survey results showing consumer confusion indicate that the parodist did too much copying and not enough distinguishing.”
As of Wednesday, a date for a Supreme Court opinion on the case is to-be-determined, per SCOTUS Blog.