A dispute between Jack Daniel’s and the makers of a squeaking dog toy that mimics the whiskey’s signature bottle with a toilet-themed pun has gone to the US Supreme Court.
On Wednesday, the court discussed whether the toy firm breached Jack Daniel’s trademarks.
The poop-themed dog toy resembling the bottle of the alcoholic beverage had the court’s justices chuckling as they explored how much protection should be given to those that rip off other brands.
The case involved a “Bad Spaniels Silly Squeaker” toy created by VIP Products – which had many similarities to Jack Daniel’s bottles.
During the court case, it was unclear from the arguments whether Jack Daniel’s case was on the rocks or whether the makers of the Bad Spaniels were in trouble.
Justice Samuel Alito expressed scepticism with Jack Daniel’s arguments.
“Could any reasonable person think that Jack Daniel’s had approved this use of the mark?” he asked at one point, suggesting the toy was an unmistakable parody and legally acceptable.
As the firm’s lawyer tried to push back on the justice’s knowledge about dog toys, Justice Alito responded: “I had a dog. I know something about dogs.” His late springer spaniel Zeus sometimes visited the court.
But during the arguments, at least one justice stated that she didn’t understand the humour behind the toy and seemed more ready to rule against it.
Justice Elena Kagan said: “Maybe I just have no sense of humour. But what’s the parody?”
Justice Kagan also said the toy is simply an “ordinary commercial product” trading on the look of the drinks company’s bottle.
‘The Old No. 2’ on your carpet
Arizona-based VIP Products has been selling its Bad Spaniels toy since 2014 and has since added to its own Silly Squeakers line of chew toys which mimic liquor, beer, wine and soda bottles.
Its most noticeable parody yet is its “Tennessee Sour Mash Whiskey” toy, which includes the wording: “The Old No. 2 on Your Tennessee Carpet.”
While the Jack Daniel’s bottles have the words: “Old No. 7 brand” and “Tennessee Sour Mash Whiskey.”
The original bottle notes it is 40% alcohol by volume and the parody features a dog’s face and says it is “43% Poo by Vol.” and “100% Smelly.”
The toy, which sells for around 20 US dollars (£16.23), also notes in small font: “This product is not affiliated with Jack Daniel Distillery,” on its packaging.
‘Fine whiskey not associated with dog poop’
Funny or not, Jack Daniel’s was not amused.
“Jack Daniel’s loves dogs and appreciates a good joke as much as anyone,” wrote the company’s lawyer Lisa Blatt in a filing with the high court.
“But Jack Daniel’s likes its customers even more and doesn’t want them confused or associating its fine whiskey with dog poop.”
Ms Blatt argued that the toys VIP Products sold to customers are misleading and that the firm profits from “Jack Daniel’s hard-earned goodwill”.
Legal bid to muzzle ‘playful parody’
At the centre of all of this is the Lanham Act.
The Lanham Act is a trademark law that was enacted in Congress in 1949.
The act protects owners of a federally registered mark against similar marks that could lead to consumer confusion.
Jack Daniel’s said a lower court was wrong to side with VIP before the case reached the Supreme Court.
VIP Products’ lawyer, Bennett Cooper, told the justices in a court filing that Jack Daniel’s “seeks to use the Lanham Act to muzzle even VIP Products LLC’s playful dog-toy parody”.
Jack Daniel’s has since received the support of US President Joe Biden’s administration and major firms, including Nike, Campbell Soup Company, Patagonia and Levi Strauss.