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The copyright laws will be distilled to their essence as Jack Daniels is literally before SCOTUS over a joking canine toy.

We are led to ask, just what is the drinking age in dog years? Yes, it is the kind of case that dredges up all manner of jocularity, both good and bad, but it is no less of a serious case for a famed liquor brand. Jack Daniels is arguing before the Supreme Court in a trademark violation suit, and even though they are suing a dog chew toy company it is a case that has drawn the participation of other companies, the Biden administration, and Hollywood.

The case surrounds the company VIP Products LLC, which markets a line of dog chew toys called Silly Squeakers which are modeled after various branded beverages. Known soft drinks, beers, and liquor brands are given risible dog-themed variations on the names and labeling, and this is where the Jack Daniels company has taken exception. 

While on the surface it appears a clear violation, what is contested here are competing legal positions. On one side you have the Lanham Act, the most prominent trademark law, which the whiskey maker is leaning on with its bottle design and labeling held under copyright. VIP Products rests on 1st Amendment rights, as it states that parody is a protected right. 

The reason this case has climbed to the level of SCOTUS is that lower courts have ruled in favor of both sides. Initially, a district court ruled in favor of Jack Daniels, but on appeal, the 9th Circuit Court ruled that although there was a clear indication of the use of the whiskey branding, the parody nature was a protected expression. “Although VIP used Jack Daniel’s trade dress and bottle design to sell Bad Spaniels, they were also used to convey a humorous message, which was protected by the First Amendment,” went that opinion.

The Distilled Spirits Council understandably filed a brief backing the whiskey maker, as has the Biden administration through the Office of the US Solicitor General. A number of other companies have joined with the distiller – Nike, Patagonia, Levis, American Apparel, among others – all citing the inherent risk that ruling against Jack Daniels can pave the way for counterfeiters to have more leeway, so long as they affix an appropriate level of humor to their appropriations. But this is countered by an interesting wrinkle in these amicus opinions.

Campbell’s cited a similar case it brought years ago, interestingly involving another canine product. The company owns the Godiva chocolate brand, and it sued a pet treat manufacturer that released a product labeled “Dogiva”, that also mimicked the packaging. Campbell’s won an injunction, but the company stated that based on the appellate ruling for VIP Products it would have lost that case.

As to be expected, there was a degree of humor experienced through the arguments when contesting the merits of a dog toy featuring playful language about excrement. The labeling on the dog toy reads “BAD SPANIELS” in place of “JACK DANIEL’S,” with “The Old No. 2” instead of “Old No. 7 Brand,” and “On your Tennessee CARPET”. These references understandably have the whiskey company a tad bothered, as it brings to mind its product with canine leavings.

Jack Daniels
ALBERT SEGHERS

You also see a struggle of sorts with some of the judges. On the matter was this exchange with Justice Elena Kagan, and Bennett Cooper, the lawyer for VIP Products.

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JUSTICE KAGAN: Maybe I just have no sense of humor, but what’s the parody?

COOPER: The parody is multifold, but the testimony indicates and it’s not been disputed that the parody is to make fun of the marks that take themselves too seriously.

JUSTICE KAGAN:  Well, I mean, you say that, but you — you know, you make fun of a lot of marks: Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Are all of these companies taking themselves too seriously? 

COOPER: Yes. In fact, you don’t see a parody as — as a bourbon — (Laughter.) JUSTICE KAGAN: I mean, just like soft drinks and liquor — 

COOPER: And — and I would say all –

JUSTICE KAGAN: – companies take themselves too seriously as a class? MR. COOPER: I think there are a lot of products that take them too seriously — seriously and merchandise. You don’t see, for example, something near and dear to my heart, a parody of Woodford Reserve bourbon because you don’t get that building up of an edifice of making them into an iconic — a cultural icon and reference point. I think, as applied here, there’s no doubt that Jack Daniel’s takes itself very seriously. 

JUSTICE KAGAN: Well, I don’t know. I don’t think Stella Artois takes itself very seriously.

MR. COOPER: And they would 

JUSTICE KAGAN: They have very funny commercials.

Despite the seriousness of the case, levity seemed unavoidable. Even while making arguments there was a tendency to lapse into gags and puns regarding the matter. As Bennett Cooper told the justices Jack Daniel’s “seeks to use the Lanham Act to muzzle even VIP Products LLC’s playful dog-toy parody.”

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