The judges have asked to hear the dog toy dispute. Will they bite?
WASHINGTON– The company that makes Jack Daniel’s is howling crazy over a squeaky dog toy that parodies the whiskey’s signature bottle. Now the liquor company is barking at the door of the Supreme Court.
Jack Daniel’s has asked judges to hear its case against plastic toy maker Bad Spaniels. The high court could say on Monday if the judges will agree. A number of big companies, from makers of Campbell Soup to outdoor brand Patagonia and jeans maker Levi Strauss, have urged judges to take what they say is an important case for trademark law.
The toy that drives Jack Daniel crazy mimics the square shape of his whiskey bottle as well as its black and white label and amber liquor while adding what he calls “poo humor”. While the original bottle bears the words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey”, the parody proclaims: “The Old No. 2 on Your Tennessee Carpet”. Instead of the original note stating that it is 40% alcohol by volume, the parody states that it is “43% Poo by Vol.” and “100% Smelly”.
The back of the toy, which costs around $13-20, says in small print “this product is not affiliated with the Jack Daniel’s Distillery.”
Toymaker says Jack Daniel’s can’t stand a joke. “It’s ironic that America’s leading whiskey distiller both lacks a sense of humor and fails to recognize when he – and everyone else – has had enough,” lawyers for Arizona-based VIP Products wrote. at the high court. They told the judges that Jack Daniel’s “went war” on the company for “having the temerity to produce a parody full of puns” of its bottle.
But Jack Daniel’s lead attorney, Lisa Blatt, made no secret of the company’s position in her filing.
“Certainly, everyone loves a good joke. But VIP’s profit-driven ‘joke’ confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill,” she wrote for Louisville, Kentucky-based Brown-Forman Corp., the company Jack Daniel’s mother.
Blatt wrote that a lower court ruling provides “virtually complete protection” for humorous trademark infringement. And she said it had “wide and dangerous consequences”, pointing to children hospitalized after eating marijuana-infused products that mimicked candy wrappers.
While VIP Products is allowed to confuse consumers with dog toys, “other fun offenders may do the same with juice boxes or marijuana-infused candy,” Blatt wrote.
The toy is part of a line of VIP products called Silly Squeakers that mimic liquor, beer, wine and soda bottles. They include Mountain Drool, which parodies Mountain Dew, and Heini Sniff’n, which parodies Heineken. In 2008, a court banned the company from selling its parody of Budweiser, ButtWiper.
After the company began selling its Bad Spaniels toy in 2014, Jack Daniel’s told the company to stop, but VIP went to court to be allowed to continue selling their product. Jack Daniel’s won the first round in court but lost an appeal. The case reached the Supreme Court at an earlier stage, but the justices did not bite.
Bad Spaniels isn’t the only parody puppy toy to draw the ire of the brand it impersonated. Luxury bag maker Louis Vuitton has sued the makers of Chewy Vuiton over their stuffed dog toys. In 2007, a federal appeals court sided with Nevada-based chew toy makers Haute Diggity Dog. Louis Vuitton did not appeal to the Supreme Court.
The case is Jack Daniel’s Properties Inc. v. VIP Products LLC, 22-148.