Supreme Court Rules for Jack Daniel's in Dog Toy Case


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Jun 08, 2023

Supreme Court Rules for Jack Daniel's in Dog Toy Case

A bottle of Jack Daniel’s Tennessee Whiskey is displayed next to a Bad Spaniels

A bottle of Jack Daniel's Tennessee Whiskey is displayed next to a Bad Spaniels dog toy in Arlington, Va., Sunday, Nov. 20, 2022. Justices ruled in favor of the brand and protection of their IP. (AP Photo/Jessica Gresko)

The Brown-Forman-owned Tennessee whiskey giant Jack Daniel's received some news worth raising a glass to Thursday when the U.S. Supreme Court ruled in favor of the producer's trademark dispute case against VIP Products LLC over a parody "Bad Spaniels" dog toy, Reuters reported.

"We are pleased with the Supreme Court's unanimous decision recognizing the rights of brand owners," a representative from Jack Daniel's told Whiskey Raiders. "Jack Daniel's is a brand recognized for quality and craftsmanship and when friends around the world see the label, they know it stands for something they can count on. We will continue to support efforts to protect the goodwill and strength of this iconic trademark."

This decision threw out the San Francisco-based 9th Circuit Court of Appeals’ decision that the dog toy was an "expressive work" protected by the First Amendment.

The case reached the Supreme Court during the latter half of March and concerned a poop-themed dog toy that resembled a Jack Daniel's bottle. The toy had nearly the same shape as the Jack Daniel's bottle, with a similar design.

The company borrowed and tweaked phrasing on the Jack Daniel's bottle, such as changing the wording of "Old No. 7 Tennessee Sour Mash Whiskey" to "The Old No. 2 On Your Tennessee Carpet."

VIP Products also poked fun at the liquor bottle's listed ABV percentages, swapping Jack Daniel's "40% ALC BY VOL (80 PROOF)" to "43% POO BY VOL" and "100% SMELLY."

The distiller claimed such language on the dog toy violated federal trademark law and that the toy could tarnish the brand's reputation because it was associated with dog excrement, according to CNN.

"To be sure, everyone likes a good joke," Jack Daniel's legal team wrote in their court papers. "But VIP's profit-motivated ‘joke’ confuses customers by taking advantage of Jack Daniel's hard-earned goodwill."

Lower courts previously ruled in favor of the dog toy company and cited the Rogers test, which allows artists to use another's trademark when it has "artistic relevance," to their work without misleading customers about its source, according to Reuters.

The Supreme Court's ruling in Jack Daniel's Properties v. VIP Products LLC could be a good sign for IP owners in the future. After all, U.S. law is largely based upon precedents set by Supreme Court rulings.

Trademark and copyright lawyer J. Michael Keyes says there were several "significant aspects" to the decision, a representative from the law firm Dorsey & Whitney told Whiskey Raiders in an email.

"First, the Court's decision gives a potentially narrower birth to those that use another party's mark — even if using that other party's trademark is done for the purpose of allegedly ‘poking fun at’ or otherwise commenting on the ‘senior user's trademark or business," Keyes said. "This will be an appreciated result for established, mature brands that need to fend off other users and copyists in the marketplace."

In addition to offering protection for more mature brands, Keyes commented that in the future it will be potentially easier for established brands to enforce their rights in a much quicker timeframe and will affect the rulings in the lower courts with a much narrower view of the First Amendment in relation to parody.

"It may be indicative of a broader trend of the Court protecting IP owners and looking more askance at those that copy and imitate those protected works," Keyes said.

Keyes also noted that this ruling may not necessarily mark the end of the road for VIP Products. There are routes the company can take to keep fighting the whiskey Goliath if it so desires.

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Cynthia Mersten is a writer/editor for Whiskey Raiders and has worked in the Beverage Industry for eight years. She started her career in wine and spirits distribution and sold brands like Four Roses, High West and Compass Box to a variety of bars and restaurants in the city she calls home: Los Angeles. Cynthia is a lover of all things related to wine, spirits and story and holds a BA from UCLA's School of Theatre, Film and Television. Besides writing, her favorite pastimes are photography and watching movies with her husband.