The Supreme Court will take a break on Wednesday from the unusually political mix of cases it decided to hear during its current term, to consider a case about poop jokes.
Jack Daniel’s v. VIP Products asks whether VIP Products, the nation’s second-largest maker of dog toys, infringed upon the whiskey maker’s trademarked bottle shape and label when it sold dog toys that resemble a bottle of Jack Daniel’s. The dog toy, named “Bad Spaniels,” juxtaposes imagery drawn from the whiskey maker’s trademarks with a gag about a dog dropping “the old No. 2 on your Tennessee carpet.”
Jack Daniel’s seeks a court order prohibiting VIP from continuing to sell this toy.
Petitioner’s brief in Jack Daniel’s v. VIP Products
Jack Daniel’s is, on the surface, a very silly case, which prompted some very silly attempts by the whiskey maker’s lawyers to explain why their client is so offended by this dog toy. Sample quote from their brief: “Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop.”
Lurking below the surface, however, are very serious questions about the First Amendment. And about how far courts should go in second-guessing Congress’s decisions about how to balance the needs of the marketplace with the demands of free speech. VIP has strong legal arguments that it should prevail in this case, but Jack Daniel’s also raises strong claims that the lower courts did too much to undermine federal trademark law.
Trademark law — that is, the body of law giving companies an exclusive right to use the imagery associated with their brand to market their products — necessarily limits free speech. Only McDonald’s, for example, may use its trademarked golden arches to sell…
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