A Bone to Pick

Jack Daniel’s Whiskey have a bone to pick with a company, which they said are breaking federal trademark laws with dog toys that resemble their iconic whiskey bottle. 

 

VIP  Products LLC have a line of spoof products that lampoon famous brands (e.g. Mountain Drool, a parody of Mountain Dew, and Heini Sniff'n, a parody of Heineken). The rubber toy in question was modeled on and closely resembles the distinctive square bottle in which Jack Daniel’s have marketed their whiskey since the 19th century – with the same size and shape and a label with a similar shape and font. 

 

The main difference is that instead of describing “Old No. 7 Tennessee Sour Mash Whiskey” manufactured by “Jack Daniel’s”, the toy refers to a “Bad Spaniels” that makes “Old No. 2 on your Tennessee carpet”. Not only that but the "Bad Spaniels Silly Squeaker" toy reads "43% poo by volume" and "100% Smelly" while the bottle of liquor says "40% alcohol by volume". 

 

Jack Daniel's are claiming the lookalike chew toy infringes on their trademark. VIP Products LLC counter-argue that it is an obvious parody and should be protected as free speech. 

 

The US Court of Appeals for the 9th Circuit in 2020 had ruled in favor of the toy company, saying that their toys are protected under the First Amendment, which prompted Jack Daniel's to seek further review from the Supreme Court.

 

"Freedom of speech begins with freedom to mock", insisted VIP Products, in court documents. 

 

But Jack Daniel's said the joke is not funny. 

 

The filing continued to say the Arizona toy company was profiting "from Jack Daniel's hard-earned goodwill" and confusing consumers, by getting them to "associate Jack Daniel's whiskey with excrement". 

 

The case centers on the Lanham Act, which prohibits using a trademark that can cause customer confusion, and the US Constitution's First Amendment, which protects forms of parody and satire as necessary aspects of free speech. 

 

"The Bad Spaniels Silly Squeaker toy is indisputably a good-faith (and successful) parody", wrote Bennett Cooper, an attorney representing VIP Products, in a court filing. 

 

Major brands – such as Nike, Campbell Soup Company, Patagonia and Levi Strauss – have urged justices to side with Jack Daniel's. 

 

And the Biden administration are also supporting Jack Daniel's claim, filing a brief that said First Amendment concerns do not override the Lanham Act, which protects trademarked brands from parodies that cause confusion. The brief also took issue with classifying the parody toy as a "non-commercial" expression, since it was a commercial product. 

 

Meanwhile free speech advocates have filed briefs in support of VIP Products. 

 

The Supreme Court heard arguments on Wednesday, and will likely issue their decision in June.