March 22, 2023 – In a nearly 90-minute hearing punctuated with laughter, the United States Supreme Court heard oral arguments in a lawsuit over whether a “Bad Spaniel’s” dog toy violates the trademark protection Jack Daniel’s has for its whisky bottles. The lawsuit (Jack Daniel’s Properties, Inc v. VIP Products) filed by Jack Daniel’s owner Brown-Forman claims the dog toy creates consumer confusion, while the poop-themed toy’s maker argues it falls within legal exceptions for parodies.
The Supreme Court agreed to take the case after VIP Products won an appeals court ruling when the court used a standard defining when a potential trademark infringement enjoys First Amendment protection. The court ruled that because the dog toy was a “non-commercial use” done with humorous intent for an “expressive purpose,” it is protected on free speech grounds.
During today’s hearing, Justice Elena Kagan appeared to have some issues understanding the parody involved in the “Bad Spaniel’s” dog toy in an exchange with VIP Products lawyer Bennett Cooper.
JUSTICE KAGAN: Well, what is there to it? What is the parody here?
MR. COOPER: The parody?
JUSTICE KAGAN: Yeah.
MR. COOPER: The parody is of —
JUSTICE KAGAN: Because maybe I just have no sense of humor, but — (Laughter) – what’s the parody?
MR. COOPER: The parody is multifold. The — the — the testimony indicates, and it’s not been disputed, that the parody is to make fun of marks that take themselves seriously.
JUSTICE KAGAN: Well, I mean, you say that, but you — you know, you make fun of a lot of marks: Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Are all of these companies taking themselves too seriously?
MR. COOPER: Yes. In fact, you don’t see a parody as — as a bourbon —
JUSTICE KAGAN: I mean, just like soft drinks and liquor —
MR. COOPER: And — and I would say all —
JUSTICE KAGAN: — companies take themselves too seriously as a class?
MR. COOPER: I think there are a lot of products that take them too seriously — seriously and merchandise. You don’t see, for example, something near and dear to my heart, a parody of Woodford Reserve bourbon because you don’t get that building up of an edifice of making them into an iconic — a cultural icon and reference point.
Listen to the Oral Arguments
The case could be a landmark one for trademark holders. Attorneys for Jack Daniel’s argued in a court filing that a ruling for VIP Products “gives copycats free license to prey on unsuspecting consumers and mark holders” by producing all forms of products under the argument that they qualify as parodies.
The Court is expected to rule on the case before the end of its term in June.