Jack Daniel’s dog toy case reaches US Supreme Court

The U.S. Supreme Court on Wednesday considered a case in which Jack Daniel’s believes a dog toy parodying the famous whiskey bottle is barking up the wrong tree.

The heart of the case explores whether the pun-laden “Bad Spaniels” vinyl chew toy wrongfully snatched the Tennessee-based company’s trademark whiskey bottle.

The nation’s highest court must rule whether the parody is an “expressive work” protected by the First Amendment against Jack Daniel’s argument that the squeaky toy infringes trademark rights.

The poo-themed toy is the same shape as the whiskey bottle with a label on the front that reads “The Old No. 2 on Your Tennessee Carpet” instead of the words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey” which is at the front of the actual whiskey product.

The parody also shows a dog’s face and jokes about “43% Poo by Vol” and “100% Smelly”.

The original bottle says it contains 40% alcohol.

Although the dog toy has a disclaimer stating that it is not affiliated with the Jack Daniel’s Distillery, Jack Daniel’s believes the association strikes too close to home.

“Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s loves its customers even more and doesn’t want them to be confused or associate its fine whiskey with dog poo,” company attorney Lisa Blatt wrote in a briefing.

Dog toy company VIP Products has other toys that play on well-known drinks, including Mountain Drool, which parodies Mountain Dew, and Heini Sniff’n, which parodies Heineken. The Bad Spaniels toy has been on sale since 2014.

VIP Products attorney Bennett E. Cooper wrote in a briefing on Jack Daniel’s lawsuit, “seeks to use the Lanham Act to muzzle even VIP Products LLC’s playful parody of dog toys.”

The Lanham Act is the federal law that governs trademark law.

At Wednesday’s hearing, Conservative Judge Samuel Alito told Jack Daniel’s legal team that he was concerned about the First Amendment implications of their argument.

“Would a reasonable person think that Jack Daniel’s approved this use of the mark?” Alito said.

Lower courts ruled in favor of VIP products after applying the so-called Rogers test which involved actress Ginger Roberts and director Federico Fellini in 1989.

It gives artists the green light to use another’s mark when there is artistic relevance to the work and does not confuse consumers as to its origin.

Liberal Justice Elena Kagan, who seemed more inclined to side with Jack Daniel’s, asked bluntly, “Maybe I just don’t have a sense of humor, but what’s the travesty?”

Known for her dry wit, she suggested the chew toy is an “ordinary commercial product” that trades on the appearance of the liquor company’s bottle.

Liberal Judge Ketanji Brown Jackson lobbied lawyers for VIP Products if Rogers’ test was too lax on “expressive works,” which is confusing.

“It sounds like what you’re doing is saying that when you’re dealing with an expressive work, we get a pass under Lanham law,” Jackson said.

A decision is expected in June.

With post wires