Jack Daniel’s and dog toy head to Supreme Court

A Supreme Court hearing has been held regarding a trademark case between Jack Daniel’s whiskey and VIP Products over a parody dog toy.

In 2018, Jack Daniel’s launched a lawsuit against dog toy maker VIP Products regarding its Bad Spaniel’s Old No.2 product.

The toy is a replica of a Jack Daniel’s bottle, and reads ‘The Old No.2 on your Tennessee Carpet’.

The District Court ruled in favour of Jack Daniel’s, on the basis that VIP Products’ use of “juvenile bathroom humour” would tarnish the whiskey brand.

However, in March 2020, the US Court of Appeals for the Ninth Circuit ruled the toys were “expressive” works that carried a humorous message.

In October 2020, six trade associations filed an amicus brief asking the Supreme Court to grant the request for certiorari, a judicial review of the decision, and reverse the verdict. It was revealed that the Supreme Court would hear the trademark case in November 2022.

The hearing took place this week, on Wednesday 22 March, between the two brands.

During the hearing, Lisa Blatt, attorney for Jack Daniel’s, said the case “involves a dog toy that copies Jack Daniel’s trademark and trade dress and associates its whiskey with dog poop”.

In response, justice Samuel Alito asked: “Could any reasonable person think that Jack Daniel’s had approved this use of the mark?”, to which she replied “absolutely”.

The whiskey brand’s original bottling features a label that reads ‘40% ABV’. The Bad Spaniel’s toy reads ‘40% Poo by Vol’ and ‘100% Smelly’.

Bennett Cooper, an attorney representing VIP Products, argued: “The parody here is not putting Jack Daniel’s on a dog toy. There’s far more to it. The parody is multifold. The testimony indicates, and it’s not been disputed, that the parody is to make fun of marks that take themselves seriously.”

Justice Kagan responded: “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 said yes, then added: “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 a cultural icon and reference point. There’s no doubt that Jack Daniel’s takes itself very seriously.”

Support for Jack Daniel’s

The Biden Administration expressed support for Brown-Forman-owned Jack Daniel’s claim of trademark infringement, filing a brief stating that concerns of the First Amendment – the right to free speech –  do not override the Lanham Act, which covers the protection of trademark brands from parodies.

Other major brands, including Nike and clothing brand Patagonia, have urged justices to side with Jack Daniel’s.

In a statement after the hearing, Brown-Forman said: “While we do not comment on pending litigation, we strongly believe in protecting the iconic Jack Daniel’s brand and preserving the goodwill that has been built for over a century.”

A verdict has not yet been decided, but will likely be revealed in June 2023.