Dog toy imitating Jack Daniel’s bottle reviewed by Supreme Court
From there, it was a blizzard of assumptions and assertions: references to pornography and sex toys, moving defenses of fine photography and First Amendment rights, a dig into a famous law school and a judge’s admission that – while recasting the whiskey’s famous square bottle as a rubbery, squeaky chew toy was satirical, as its maker, VIP Products claims – she was missing the joke.
“Maybe I just don’t have a sense of humor,” Judge Elena Kagan began (although it looks like she doesn’t think I do), “but what’s the parody?”
In the end, it appeared the court was not particularly pleased with the broad trademark protection arguments made by Blatt, representing Jack Daniel’s; nor the theory of artistic expression of Bennett E. Cooper, representing VIP Products; nor Matthew Guarnieri, presenting the federal government’s more middle-of-the-road approach.
Judges seemed likely to send the case back to lower courts for further work. What guidance the Supreme Court would provide on policing trademark protections and free speech rights remained unclear.
According to Cooper’s memoir, VIP Products owner Steven Sacra came up with the idea of adding a parody of Jack Daniel’s to his line of dog toys that imitated other beverages, including Corona beer and Mountain Dew. “Bad Spaniels” faithfully recreates the whiskey’s distinctive black label. But instead of “Old No. 7 Tennessee Sour Mash Whiskey”, the toy says “Old No. 2 on your Tennessee carpet”. According to its label, Bad Spaniels’s is “43% POO BY VOL.”
Jack Daniel’s was unhappy with the tribute and told VIP Products to stop. A district court ruled for the whiskey company. But the United States Court of Appeals for the 9th Circuit overruled, saying the lower court failed to consider the parodic nature of the product. Appeals court judges relied on a rule that arose out of a dispute involving Ginger Rogers over a Federico Fellini film, and said Bad Spaniels is “an expressive work enjoying First Amendment protection “.
On Wednesday, some judges thought that was overkill. “It’s not a political T-shirt. It’s not a movie. It’s not artistic photography. It’s none of that,” Kagan told Cooper. She later added : “A dog toy, I will just say, is a utilitarian good.”
Cooper replied that the toy could also be considered a “soft sculpture” and part of a collection. The satire poked fun at a company that takes itself too seriously, he said.
Kagan listed some of the VIP Products items: “Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Are all these companies taking themselves too seriously?
Other justices believed Blatt and Guarnieri were downplaying the risks to free speech rights, as several organizations had detailed in amicus briefs.
“Some of the hypothetical and real cases that are highlighted in the briefing of this case strike me as having serious First Amendment issues,” Judge Samuel A. Alito Jr. told Guarnieri. “And you don’t seem very concerned about the free speech implications of the position you take.”
Guarnieri said VIP products shouldn’t get a First Amendment pass to make commercial products that are “likely to confuse consumers about the source of your products or the sponsorship or endorsement of the main owner of the mark”.
When Alito said no reasonable person would believe Jack Daniel’s would endorse Bad Spaniels, Blatt pointed to a consumer survey that said about 30% believed exactly that.
“Justice Alito, I don’t know how old you are, but you went to law school, you’re very smart, you’re analytical, you have a retrospective bias, and maybe you know something,” Blatt said before Alito jokingly cut. she extinguished.
“Well, I went to law school where I didn’t learn any law,” said Alito, who, like colleagues Clarence Thomas, Sonia Sotomayor and Brett M. Kavanaugh, attended Yale Law School. .
Blatt said there was a darker side to the First Amendment argument that a company’s trademark rights must give way to parody. “They don’t want to talk about the pornographic and toxic things that could be done when you infringe on someone’s trademark,” she said, mentioning movies and sex toys.
Some judges — Neil M. Gorsuch and Ketanji Brown Jackson, for example — have explored other ways for courts to determine when free speech and trademark protections are at odds. But it was difficult to determine where the court could go out.
For all the liveliness of the argument, several judges were uncharacteristically calm. Chief Justice John G. Roberts Jr. asked only one question, while Kavanaugh and Judge Amy Coney Barrett asked none.
The case is Jack Daniel’s Properties c. VIP products.
Washington
