Sipp’n Corn Bourbon Law Update – Jack Daniel’s v. “Bad Spaniels” Dog Toy.

Ever since Old Crow and Old Taylor aggressively protected their trademarks in the 1800’s, setting the stage for current-day trademark law, whiskey has kept trademark attorneys busy.

Brown-Forman’s Jack Daniel’s brand and VIP Products’ “Bad Spaniels” dog toy now have the opportunity to establish limitations on how far an alleged “parody” use of another’s famous brand and trade dress can go before it becomes illegal infringement.  On January 31, the Supreme Court of the United States set oral argument for March 22, 2023 in this epic legal battle.

Basically, VIP sells a dog toy that is shaped like a bottle of arguably the most famous brand of American whiskey and makes all sorts of “poop jokes” on the toy.  It is indisputable that the dog toy’s look, design, and words are intended to trade on the brand recognition of Jack Daniel’s, but VIP insists that it’s all in good fun.  In fact, in a brief filed with the Supreme Court where it tried to convince the Court that it should not even consider the case, VIP smugly argued that “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.  [Jack Daniel’s] has waged war against [VIP] for having the temerity to produce a pun-filled parody…”  And when famous brands are made fun of, “the world did not end.”

Jack Daniel’s argues that the dog toy tarnishes its brand and is likely to confuse consumers.  The First Amendment was never intended to protect speech that confuses and misleads consumers, and the Lanham Act restricts commercial use of protected Marks, so no matter how funny poop jokes might be, it’s no laughing matter to violate the law.  Jack Daniel’s insists that it likes dog and jokes—including jokes at its expense—but VIP is mimicking Jack Daniel’s iconic trade dress to mislead consumers and to profit off of Jack Daniel’s goodwill.  Plus, Jack Daniel’s doesn’t want its customers confused or have them “associating its fine whiskey with dog poop.”

The United States District Court in Arizona (where VIP is based) sided with Jack Daniel’s, but the Ninth Circuit Court of Appeals reversed, setting the stage for the Supreme Court to rule on whether anyone can use famous trademarks to sell dog toys or whatever else they want, as Jack Daniel’s suggests—“sex toys, drinking games, or marijuana bongs, … all in the name of just having fun.”

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