Jack Daniels parent (Brown Forman) has no sense of humor. Loser!

Really, you're going to sue over a funny dog toy? Just for that, I'm going to get inebriated elsewhere. Suck it.

Jack Daniel’s Faces Off With Dog Toy at Supreme Court

Justices hear arguments on trademark case over ‘Bad Spaniels’ squeaky toy

A bottle of Jack Daniel’s Tennessee Whiskey next to a ‘Bad Spaniels’ dog toy.

By Jess Bravin, WSJ

March 22, 2023 2:01 pm ET

WASHINGTON—A trademark case put the Supreme Court’s humor to the test Wednesday, as the justices heard a distillery’s plea to stop a novelty company from selling a dog toy shaped like a bottle of Jack Daniel’s.

Phoenix-based VIP Products LLC markets squeaky toys that mimic beverage bottles, including a 10-inch-tall item with a black label reading “Bad Spaniels: The Old No. 2 on Your Tennessee Carpet” for $16.49. Among those unamused was Brown-Forman Corp.’s BF.B 0.97%increase; green up pointing triangle Jack Daniel’s Properties unit, which produces Jack Daniel’s Old No. 7 Brand Tennessee Sour Mash Whiskey.

Jack Daniel’s sued for trademark infringement, winning before an Arizona federal court. But the Ninth U.S. Circuit Court of Appeals, in San Francisco, found the scatological squeaky toy to be parody, a form of expression protected by the First Amendment.

Justice Elena Kagan didn’t get the joke. “Maybe I just have no sense of humor. What’s the parody?” she asked.

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Bennett Cooper, the lawyer for VIP Products, said the toy pokes fun at the self-importance of the Jack Daniel’s brand, whose advertising emphasizes a venerable legacy of spirits manufactured in tiny Lynchburg, Tenn.

“There’s no doubt that Jack Daniel’s takes itself very seriously,” Mr. Cooper said.

“This is not a political T-shirt. It’s not a film. It’s not an artistic photograph. It’s nothing of those things. It’s a standard commercial product,” Justice Kagan said. Merely dressing it up as a parody shouldn’t be enough to let VIP Products sell novelties resembling bottles of Jack Daniel’s, she suggested.

Federal trademark law, the Lanham Act, prohibits using marks that are likely to confuse consumers about the origin of a product or dilute a product’s value, including by association with disreputable subjects.

“This case involves a dog toy that copies Jack Daniel’s trademark and trade dress and associates its whiskey with dog poop,” the distiller’s lawyer, Lisa Blatt, told the justices.

But she appeared to lose several justices by making a far broader argument, calling for the court not merely to side with the spirit-maker but also to overrule a 1989 appeals-court precedent that gave greater leeway for expressive works to refer to trademarks.

In that case, the Second Circuit rejected Ginger Rogers’s suit against a 1986 Federico Fellini movie about two Italian dancers, titled “Ginger and Fred,” which the Hollywood star argued implied her endorsement.

“The Lanham Act has no exceptions for expressive works. It bars using marks for any goods that would likely cause confusion as to origin, sponsorship or approval,” Ms. Blatt said. “Artistic relevance has nothing to do with confusion.”

“You seem unconcerned about the First Amendment implications of your position,” said Justice Samuel Alito. “That’s a text that takes precedence over the Lanham Act.”

“Trademarks have been around since the 1500s. They predated the First Amendment,” Ms. Blatt replied. “The Lanham Act clearly is constitutional.”

“The question isn’t whether it’s constitutional,” Justice Alito said. “The question is whether it should be interpreted—and this is where Rogers may come from—in a way that does not bring it into conflict with the First Amendment.”

A decision in the case, Jack Daniel’s Properties, Inc. v. VIP Products LLC, is expected before July.