The Supreme Court on Thursday sided with Jack Daniel’s in a challenge over a poop-themed dog toy that parodies the iconic whiskey bottle.
“This case is about dog toys and whiskey, two items seldom appearing in the same sentence,” Justice Elena Kagan wrote in the opening line of the opinion. The justices ruled in unanimity in favor of Jack Daniel’s, which argued that an appeals court erred when it said the parody toy was “non-commercial” and enjoyed First Amendment protection.
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However, the full court did decline to grant Jack Daniel’s request to toss out a test used in an appeals court that ruled in favor of the toy, a move that would have granted trademark holders a broad ability to sue companies that parody their marks on consumer products.
The focus of the case was on a dog chew toy created by VIP Products, which was a bottled-shaped toy that is very similar to the iconic Tennessee whiskey.
Jack Daniel’s claimed the toy violated federal trademark law, which typically centers on how likely a consumer is to confuse an alleged infringement with something produced by the real owner of the mark.
“The Court held that VIP Products is potentially liable for trademark infringement,” J. Michael Keyes from Dorsey & Whitney told the Washington Examiner.
In the last major decision in the case, the U.S. Court of Appeals for the 9th Circuit sided with the toy company in 2020, ruling it enjoys special protections from trademark claims.
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But Keyes, a trademark and copyright lawyer, said the Supreme Court ruling does not necessarily mean that all hope is lost for VIP Products to continue defending their parody products in lower federal courts.
“Although it does not enjoy the sweeping First Amendment protection given to it by the Ninth Circuit, VIP will still have an opportunity to argue to the lower court that its use of Bad Spaniels is not likely to cause confusion in the marketplace,” Keyes added.
