The next major Supreme Court case involving trademark rights involves a doggie chew toy and a legendary whiskey distillery. Citing First Amendment protections, VIP Products, the parent company of Bad Spaniels Silly Squeaker dog toy, caused a dispute when it created a chew toy that looks like a bottle of Jack Daniels. The chew toy comes with a tag saying it’s unaffiliated with the Tennessee distillery, and it clearly appears to be a chew toy.
- Whiskey bottle-shaped toy
- A similar label on the fake bottle
- The toy’s name riffs on the whiskey’s
There are also some jokes in the toy’s packaging:
- The toy’s label says, “the Old No. 2, on your Tennessee carpet” instead of the whiskey’s “Old No. 7 Brand Tennessee Sour Mash Whiskey.”
- The toy’s label says, “43 percent poo” instead of the whiskey’s “40 percent alcohol by volume.”
Is there consumer confusion?
Most trademark cases revolve around the infringement leading to consumer confusion over the origin of the defendant’s product. In this case, no one will confuse a chew toy for an actual bottle of whiskey. The Court of Appeals for the Ninth Circuit in San Francisco said as much, stating that the First Amendment applies because Bad Spaniels uses irreverent humor and wordplay.
Jack Daniels was unamused by a joke done at its expense, claiming in brief that the toy “confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill.” It also claimed that the toy undermined its efforts to promote moderate consumption of its whiskey.
VIP Products countered, citing such parodies as Weird Al Yankovic’s music and Topps’s Wacky Packages trading cards as classic examples of parodying IP-protected property. It also points out that the toy is not harming people or dogs.
The American Intellectual Property Law Association issued its own brief on this matter. It argued that the First Amendment does play a role in the infringement, but only if it involves a work of art. It contends that the chew toy is a commercial product that does not meet a creative standard.
The high court will hear arguments in March and issue a decision by June.