WASHINGTON — A dispute between Jack Daniel’s and the makers of a squeaking dog toy that mimics the whiskey’s signature bottle gave the Supreme Court a lot to chew on Wednesday.
The question for the court involves whether the toy’s maker infringed on Jack Daniel’s trademarks, and the justices were largely on their best behavior, not picking up on the toy’s poop humor and puns.
Still, with three of the justices either completely or almost totally silent, it wasn’t clear from the arguments whether Jack Daniel’s case is on the rocks or whether the makers of the Bad Spaniels toy had been, well, bad.
Justice Samuel Alito expressed skepticism for Jack Daniel’s arguments. “Could any reasonable person think that Jack Daniel’s had approved this use of the mark?” he asked at one point, suggesting the toy was an unmistakable parody and legally acceptable.
When the company’s lawyer pushed back on the justice’s knowledge about dog toys, Alito responded in part with: “I had a dog. I know something about dogs.” His late springer spaniel Zeus sometimes visited the court.
But Justice Elena Kagan seemed more ready to rule against the toy’s manufacturer. “Maybe I just have no sense of humor,” Kagan said to laughter. “But what’s the parody?”
Kagan, whose dry wit is often on display in the courtroom and in her writing, suggested the toy is simply an “ordinary commercial product” that is trading on the look of the liquor company’s bottle.
Arizona-based VIP Products has been selling its Bad Spaniels toy since 2014. It’s part of its Silly Squeakers line of chew toys that mimic liquor, beer, wine and soda bottles. They include Mountain Drool, which parodies Mountain Dew, and Heini Sniff’n, which parodies Heineken.
While Jack Daniel’s bottles have the words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey,” the toy 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.
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.