The “poop-themed” toy sold by Jack Daniel VIP Products has caused customer confusion due to its wording.
Funny case with the serious question of whether parodies of well-known commercial trademarks, including pet excrement and product protection, go too far under federal law and will be heard by the Supreme Court of the United States.
Jack Daniel’s, a whiskey distillery, has filed an appeal with the Supreme Court to prevent a firm in Arizona from selling plastic dog toys designed to look like the labels and bottles of its renowned whiskey. Oral arguments in the case will take place on Wednesday.
This is the most recent high-profile Supreme Court case involving intellectual property rights. An expected ruling in June on trademark infringement might reveal the scope of the First Amendment’s protections.
A dispute has arisen over a line of dog toys marketed under the name “Silly Squeakers,” some of which are imitations of well-known names.
Phoenix, Arizona’s VIP Goods offers a broad selection of novelty pet items, such as the 18-inch-long vinyl “Bad Spaniels” toy that is shaped like a booze bottle.
The maker of premium whiskey claims that the knockoff confuses consumers and damages its reputation.
The chew toy’s motto, “The Old No. 2 on Your Tennessee Carpet,” is a pun on Jack Daniel’s “Old No. 7 brand” advertising. While Jack Daniel’s boasts that it contains 40% alcohol by volume, the toy’s label reads, “43% Poo by Vol.” and “100% Smelly.”
VIP’s packaging expressly disavows any affiliation with Jack Daniel’s on the back.
Internet trolls have asked if the Supreme Court will “lay waste” to its trademark precedents in a “spirited argument” or if its judgment will be “all bark and no bite” among intellectual property specialists and legal bloggers.
Legal briefs submitted to the Supreme Court have even included attempts at humor from both sides.
“Jack Daniel, like the rest of us, appreciates good humor and the companionship of dogs. Nonetheless, the company’s attorneys said before the court that Jack Daniels would prefer that their premium spirit not be associated with dog crap.
They said that one method to harm a company’s reputation and waste billions of dollars was to use its brand on products like sex toys, drinking games, and cannabis bongs. Using comedy does not make federal legislation regarding trademarks null and void.”
Many corporations have acted as “friends of the court” in Jack Daniel’s case. They include Levi Strauss, Nike, and Campbell Soup.
Yet, the pet supply store thinks it’s humorous that America’s top whiskey distiller lacks a sense of humor and has no idea when it and the rest of the world have had enough.
“VIP created a canine chew toy in the same irreverent, satirical vein as a half-worth century of pop culture, from Topps’ Wacky Packages playing cards to “Weird Al” Yankovic. The term “Jack Daniel’s” has never been associated with a product produced by VIP, and the firm has never marketed alcoholic beverages (humorously or not). Simply designed to seem like the iconic bottle, this was intended to ensure maximum humor transfer.”
In a bold move, VIP requested the court if may bring 10 of its authentic “Bad Spaniels” toys into the courtroom for the judges to view and hear “squeak.”
Research papers in favor of VIP Products have been prepared by several organizations. They are concerned that if the law’s safeguards are weakened, it will become more difficult to utilize “cultural signifiers” in media like political blogs, fanzines that pay tribute to celebrities, and satirical films.
To VIP’s delight, a federal appeals court in San Francisco ruled that “The Bad Spaniels dog toy is an expressive work that should be protected by the First Amendment.”
The Department of Justice has requested that the Supreme Court hold off on a decision until lower courts have completed their work on pending legal matters.
This is the Supreme Court’s second major intellectual property case of the term.
The Supreme Court discussed a fair-use issue involving an Andy Warhol portrait of the late musician Prince in October.
photographer Lynn Goldsmith snapped this iconic portrait of the singer in 1981. This photograph served as the basis for a series of silkscreen prints by Andy Warhol that accompanied articles in periodicals.
The issue at hand is whether or not courts can take into account a work of art’s meaning if it “obviously originates from” the original material, and whether or not such a work can be considered transformative if it conveys a different meaning or message from its source material.
A decision on it is expected in the coming months.
The Supreme Court must decide in the Warhol and whiskey cases whether or whether the use of derivative designs constitutes an infringement of copyright or trademark. No matter how crude or scatological the humor, this holds.
A legal theory known as “fair use” holds that it is permissible to make use of another’s intellectual property under specific circumstances. Art of this “transformative” variety can be employed as a means of commenting on, analyzing, or even poking fun at social norms and mores.
When it comes to trademark protection, the Lanham Act is crucial federal legislation. As part of their case, they have to prove that the infringing work or trademark “explicitly misleads” or confuses buyers.
There has been much judicial consideration of this standard. The Supreme Court is being pressed for clarity on this issue in the modern day when artificial intelligence (AI) and computers make it easier and more frequent to alter artwork and trademarks.
The “Rogers test” has long been employed by courts to strike a reasonable balance between “the right to preserve a well-known name” and “the freedom of others to express themselves freely in their work.”
Ginger Rogers’ estate lost a lawsuit against Fellini’s 1986 film Ginger & Fred, which was titled after the late actress. The film followed two Italian cabaret singers. Rogers claimed the film infringed on her trademark rights, but an appeals court ruled that trademarks with expressive intent should be afforded the same or more protection than other types of protected communication.
The court’s decision could have far-reaching effects that extend beyond commercial products and into the current divisive political expression, given that satirical sites like “The Babylon Bee” and TV comedy show like “Saturday Night Live” make fun of elected leaders, ideological movements, celebrity, and corporate culture.
As a subset of this larger category, “culture jamming” is defined as “a form of political and social activism that uses fake advertisements, hoax news stories, pastiches of company logos and product labels, computer hacking, etc.” to “draw attention to and undermine the power of the media, governments, and large corporations.”
Guerrilla communication, so-called for its frequently anonymous, grass-roots origins and employment in flash mobs and graffiti, refers to the humorous or sarcastic alteration of recognizable brand logos and insignia.
The nine judges, like the rest of us, may decide whether or not the public can make jokes about them.
Consider the story of a man in Ohio who mocked local law enforcement on Facebook. Last month, he submitted a new appeal, but it was rejected. He had intended to launch a lawsuit when he was initially jailed for violating a state statute that makes it illegal to “disrupt” or “interrupt” police activity.
The satirical news website “The Onion” submitted an amicus brief arguing (with tongue firmly in cheek) that political criticism through humor is an effective strategy.
The satirical news site makes little effort to disguise the reality that the federal bench is composed entirely of Latin nerds. The Onion, it said to the judges, is aware of the situation.
Jack Daniel’s Properties v. VIP Products, L.L.C. is the full legal citation for this matter (22-148).