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Jack Daniel’s gets Supreme Court showdown against dog toy maker

The case asks the justices to review if a dog toy company can make poop-themed jokes at Jack Daniel’s expense. 

WASHINGTON (CN) — The Supreme Court agreed Monday to wade into a trademark dispute concerning whiskey and poop-themed dog toys. 

VIP Products sells a Bad Spaniels Silly Squeaker dog toy labeled “The Old No. 2 on your Tennessee carpet.” Though shaped like a bottle of the iconic Jack Daniel’s Tennessee whiskey “Old No. 7. Brand,” Bad Spaniels touts its contents as “43% Poo by Vol.” and “100% Smelly.” The problem is Jack Daniel’s isn’t laughing. 

Represented by Williams & Connolly, Jack Daniel’s says the Bad Spaniels toy infringes on its trademark and prevents the brand from protecting its image. The whiskey company said trademark law “does not account for VIP’s purported First Amendment interest in making poop-themed jokes at Jack Daniel’s expense.” 

“To be sure, everyone likes a good joke,” attorney Lisa Blatt wrote in the company’s petition. “But VIP’s profit-motivated ‘joke’ confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill.” 

VIP Products responded that Jack Daniel's has “waged war” on the company for having the gall to produce a pun-filled parody of the iconic whiskey bottle. 

“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 — had had enough,” Bennett Evan Cooper, an attorney with Dickinson Wright representing VIP Products, wrote in the company’s brief.

VIP Products has a line of Silly Squeakers that imitate beer, wine, soda and liquor bottles. The company argues that it isn’t selling whiskey or even using Jack Daniel’s in any way; the Bad Spaniels toy only mimicked the bottle enough for people to get the joke. 

The legal battle over the parody toy dates back to 2014 when Jack Daniel’s demanded VIP Products halt all sales of the Bad Spaniels toy. VIP instead took the case to court, filing for a declaratory judgment that its parody of the iconic whiskey bottle does not infringe or dilute any claimed trademark rights. 

After denying summary judgment, the district court found that VIP used an adaptation of Jack Daniel’s trademark and rejected VIP’s First Amendment defenses because the toy was sold as a commercial product. The district court held a bench trial that banned VIP from selling the Bad Spaniels dog toy. 

A unanimous panel on the Ninth Circuit reversed and remanded the case, finding the toy was entitled to First Amendment protections. After being denied a rehearing en banc, Jack Daniel’s was also shot down in an attempt to get high court intervention. 

Back at the district court, VIP prevailed this time around. The Ninth Circuit then affirmed, setting up a high court showdown. 

Well-known brands like Levi Strauss, Patagonia and Campbell Soup urged the court to examine the important trademark issues in the case. 

Jack Daniel’s claims VIP and similar companies used this type of trademark infringement to produce funny alcohol-themed rip-offs to market to children. 

“The Ninth Circuit’s decision gives copycats free license to prey on unsuspecting consumers and mark holders,” Blatt wrote. “Companies like VIP may market funny alcohol-themed rip-offs to children. Others may sell funny versions of popular food brands laced with marijuana.” 

VIP says its reference to alcohol is so subtle that only people already familiar with the whiskey understand the parody. It argues that, if Jack Daniel’s is worried about competitors marketing alcoholic beverages to children, they should use those companies instead. 

“No one — not a child, not a dog — is going to be harmed by VIP’s parody,” Cooper wrote. 

The justices did not issue any statement with their order granting certiorari in the case. 

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