The Supreme Court is hearing a spirited dispute Wednesday between whiskey maker Jack Daniel’s and the Arizona-based manufacturer of a squeaking dog toy that parodies the liquor's bottle and label.
The question for the court has to do with whether the toy's maker infringed on Jack Daniel's trademarks.
Arizona-based VIP Products produces the Bad Spaniels toy. While the original bottle has the words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey,” the parody proclaims: “The Old No. 2 on Your Tennessee Carpet.” The original bottle notes it is 40% alcohol by volume. The parody features a dog's face and says it’s “43% Poo by Vol.” and “100% Smelly.”
The packaging of the toy, which retails for around $20, notes in small font: “This product is not affiliated with Jack Daniel Distillery.”
Jack Daniel's, based in Lynchburg, Tennessee, isn't amused.
"Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop," wrote the company's attorney Lisa Blatt in a filing with the high court ahead of Wednesday's arguments. Audio is being livestreamed on the court's website.
Blatt wrote that Jack Daniel’s “welcomes jokes at its expense” but that the toy VIP sells misleads customers, profits “from Jack Daniel’s hard-earned goodwill” and associates its “whiskey with excrement.”
At the heart of the case is the Lanham Act, the country's major trademark law. It prohibits using a trademark in a way “likely to cause confusion ... as to the origin, sponsorship, or approval of ... goods." Jack Daniel's says that's what the dog toy does. It says a lower court was wrong to side with VIP.
But VIP Products' lawyer, Bennett E. Cooper, told the justices in a court filing that Jack Daniel's "seeks to use the Lanham Act to muzzle even VIP Products LLC’s playful dog-toy parody."
Nike, Campbell Soup Company, outdoor brand Patagonia and jeans maker Levi Strauss were among those urging the justices in court filings to side with Jack Daniel's. The company also has the support of the Biden administration.
