Supreme Court hears arguments over whiskey bottles, dog toys, pornography and poo

A Supreme Court debate on Wednesday over parody and popular trademarks was dominated by discussions of whiskey bottles, dog toys, pornography and poo.

For nearly two hours, in a laugh-out-loud argument, judges grappled with the intersection of free speech and trademark protection in a case between a maker of humorous dog toys and a producer of American whiskey. Jack Daniel’s.

The case, Jack Daniel’s Properties Inc., c. VIP Products, centers on a chew toy that looks like a bottle of Jack Daniel’s whiskey but is spoofed as “Bad Spaniels” with the suggestion that its contents are animal waste.

“This case involves a dog toy that copies Jack Daniel’s trademark and trade dress and associates his whiskey with dog poop,” the whiskey maker’s attorney, Lisa Blatt, told the court on Wednesday.

The liquor company says the toy’s design confuses and dilutes the quality of its brand. VIP Products insists that parody is obvious and protected by the First Amendment.

“They’re complaining about the speech, the parody, the comparison to dog poo and a Bad Spaniel, not the branding,” VIP Products attorney Bennett Cooper said Wednesday. “Spoofs on non-competitive products like Bad Spaniels are unlikely to cause confusion.”

A district court sided with Jack Daniel’s, but an appeals court overturned, upholding the toy. The judges considered what legal test should decide when a trademark has been infringed and whether VIP Products’ toy has.

“Would a reasonable person think that Jack Daniel’s approved this use of the mark?” Judge Samuel Alito asked Blatt, representing the whiskey maker.

“Absolutely,” Blatt replied. “That’s why we won [in the district court].”

“I’m concerned about the First Amendment implications of your position,” Alito said.

Blatt, backed by dozens of American brands like American Apparel, Campbell Soup Company and Nike, warned that allowing knockoffs like “Bad Spaniels” would open the floodgates to counterfeiting harmful brands – under the guise of “parody” – including in pornography.

Blatt told the judges that trademark owners could be victims of “something approaching forced speech if their trademark has been used in pornographic films, pornographic toys and sex toys, and people are taking advantage of it. “.

She referred to the 70s pornographic film “Debbie Does Dallas,” which in a separate case found an appeals court infringed the Dallas Cowboys Cheerleaders trademark.

Meanwhile, VIP Products argued that a dog toy is a “non-commercial” form of protected speech – a distinctive travesty, said Cooper, one of their lawyers, because it does not explicitly say “Jack Daniel’s “.

“There’s no question that Jack Daniel’s takes itself very seriously,” Cooper joked.

Some on the ground seemed unconvinced.

“Maybe I just don’t have a sense of humor – but what’s the travesty?” asked Judge Elena Kagan. She went on to suggest that the chew toy is just an “ordinary commercial product” profiting from the likeness of a whiskey brand.

“You make fun of a lot of brands: Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Are all these companies taking themselves too seriously? she asked dryly.

Chief Justice John Roberts led the morning’s arguments but did not ask any questions himself. Judges Brett Kavanaugh and Amy Coney Barrett did not speak at all throughout the proceedings.

There was no apparent consensus among the justices on which company should prevail or whether the case should be sent to a lower court for further consideration.

The court is expected to issue its decision by the end of June.