Supreme Court agrees to hear whiskey maker Jack Daniel’s trademark lawsuit against pet toy maker

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The Supreme Court agreed on Nov. 21 to hear a trademark infringement case brought by Jack Daniel’s against a dog toy maker whose chew toy product resembles a bottle of the Tennessee distiller’s storied whiskey.

The novelties company sells a squeaking dog toy labeled “Bad Spaniels” in the shape of a Jack Daniel’s whiskey bottle, complete with a black-and-white label over what is supposed to represent brownish liquor.

The real whiskey bottle label says the product is the “Old No. 7 brand” of “Tennessee Sour Mash Whiskey,” while the toy employs scatological humor, bearing a label that says “The Old No. 2 on Your Tennessee Carpet.”

The real whiskey notes it is 40 percent alcohol by volume but the toy announces it is “43% Poo By Vol.” and “100% Smelly.” The toy also displays a small-font disclaimer saying, “This product is not affiliated with Jack Daniel’s Distillery.”

The case implicates the First Amendment and trademark protection laws and deals with the extent to which one company may parody another’s product with its own product. The issue is whether the Constitution’s free speech protections insulate the parody product from trademark-infringement claims by the maker of the product that is being satirized.

Corporations including Campbell’s Soup Company and clothes makers Patagonia Inc. and Levi Strauss and Co. also filed briefs with the high court supporting Jack Daniel’s, asking the Supreme Court to take the case because, in their view, it deals with important trademark law issues.

The court granted the petition in Jack Daniel’s Properties Inc. v. VIP Products LLC, court file, 22-148, in an unsigned order without explanation.

According to the Jack Daniel’s petition (pdf), VIP Products LLC markets and sells dog toys that rely on the brand recognition of famous companies such as Jack Daniel’s Properties.

A federal district court found “that VIP’s use of Jack Daniel’s trademarks to sell poop-themed dog toys was likely to confuse consumers, infringed Jack Daniel’s marks, and tarnished Jack Daniel’s reputation,” the petition states.

The often-reversed U.S. Court of Appeals for the 9th Circuit went the other way, finding that VIP’s First Amendment-protected interest in using Jack Daniel’s trademarks on the humorous canine product gave VIP special protection from infringement claims, making the use “noncommercial” and therefore exempt from trademark dilution claims.

In a brief (pdf) filed Oct. 17, VIP took aim at Jack Daniel’s, accusing the company of being unable to take a joke.

“It is ironic that America’s leading distiller of whiskey both lacks a sense of humor and does not recognize when it—and everyone else—has had enough. Petitioner Jack Daniel’s Properties Inc. … has waged war against … VIP Products LLC for having the temerity to produce a pun-filled parody of JDPI’s iconic bottle—the Bad Spaniels Silly Squeaker dog toy,” the brief stated.

“In the playful parodic tradition that has ranged over a half century from Topps’s Wacky Packages trading cards through ‘Weird Al’ Yankovic, VIP put out a chewable dog toy. VIP 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.”

The Epoch Times reached out to counsel of record for both parties but had not received a reply from either as of press time.

This article by Matthew Vadum appeared Nov. 21, 2022, in The Epoch Times.