Lawyers for Jack Daniel’s will argue to the Supreme Court on Wednesday that a dog toy company violated federal trademark law when it parodied the distiller’s bottle to sell a “Bad Spaniels Silly Squeaker” toy replete with poop-themed jokes.
The case pits the rights of a famous trademark holder against the First Amendment rights of a company that wants to use those marks to sell a humorous product.
At the center of the case is a squeaky toy created by VIP Products that is strikingly similar to Jack Daniel’s bottles. Apart from the general shape of the toy, the plastic bottle, like its glass counterpart, has a similar font style and uses a black label.
VIP 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 excrement. And it changes the liquor bottle’s “40% ALC. BY VOL. (80 PROOF)” with “43% POO BY VOL.” and “100% SMELLY.”
A tag affixed to the toy notes that it’s “not affiliated with Jack Daniel Distillery.”
That, however, was not enough to keep Jack Daniel’s from suing the company to take the toy off the market. The distiller argues VIP violates federal trademark law and that the toy, especially the references to dog excrement, damage its reputation because it could confuse consumers into thinking the product belongs to the “oldest registered distillery in the United States.”
“To be sure, everyone likes a good joke,” lawyers for Jack Daniel’s wrote in court papers. “But VIP’s profit-motivated ‘joke’ confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill.”
Depending on how they rule, the justices could strip away some trademark protections by giving entities cover to legally use registered marks not belonging to them so long as they do so in a way that…
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