The Supreme Court grappled Wednesday with whether a poop-themed dog toy too closely resembled Jack Daniel’s trademark in a dispute that had justices from both wings of the court skeptical of the whiskey company’s claim that consumers would confuse the two products.
Federal law, specifically the Lanham Act, holds people liable for using another’s symbol, name, device or word in commercial transactions.
But the legislation also has an exception for the fair use of trademarks when parodying a product or company.
“They don’t need permission to make a parody,” Justice Sonia Sotomayor told attorney Lisa Blatt, who represented Jack Daniel’s before the high court.
Ms. Blatt, though, argued that the dog toy product “associates [Jack Daniel’s] whiskey with dog poop,” saying they did “too much copying and not enough parodying.”
“Trademarks are ancient property rights,” said Ms. Blatt. “All trademarks are expressive. They have speech rights.”
But Justice Samuel A. Alito Jr., like Justice Sotomayor, was skeptical.
“Would any reasonable person think that Jack Daniel’s had approved this use of the mark?” he said. “I’m concerned about the First Amendment implications.”
Nike, Campbell Soup Company, outdoor brand Patagonia and jeans maker Levi Strauss were among those urging the justices in court filings to side with Jack Daniel’s. The company also has the support of the Biden administration.
At issue in the case is a dog toy produced by VIP Products that looks similar to a Jack Daniel’s square whiskey bottle that read, “Bad Spaniels The Old No.2 on your Tennessee Carpet.”
Jack Daniel’s bottles read: ‘Jack Daniel’s Old No. 7 Tennessee Sour Mash Whiskey.”
Jack Daniel’s Properties sued the dog toy producer, claiming it was infringing on its trademark.
The trial court ruled in the whiskey company’s favor, reasoning the product could confuse customers. But the 9th U.S. Circuit Court of Appeals reversed, saying the toy was expressive work that was protected by the First Amendment.
Bennett Evan Cooper, the attorney representing VIP Products, said the two products are unlikely to cause confusion, and stressed the product is a parody.
“They are complaining about the speech — the parody and the comparison to dog poop,” he said. “There is no bottle of poo. It’s simply making a joke.”
“Companies simply do not license lampoons of their own products,” Mr. Cooper added.
The case is Jack Daniel’s Properties Inc. v. VIP Products.
A decision is expected by the end of June.
