Jack Daniel’s made a dog toy parody of the Supreme Court
The Jack Daniels-Petison Case: An Appeal to the Judgmentation of a Famous Brand to Sell a Dog Toy
Jack Daniel’s is trying to keep the sale of the dog toy from happening, because they contend that it confuses consumers and tarnishes their reputation. The company that makes and markets the dog toy is not violating the trademark, they are spoofing it.
The case pits the rights of a famous trademark holder against the rights of a company that wants to use those marks to sell a funny product.
Jack Daniel’s bottles and a squeaky toy are similar to the center of the case. Apart from the general shape of the toy, the plastic bottle, like its glass counterpart, has a similar font style and uses a black label.
VIP borrows Jack Daniel’s “Old No. 7 Brand Tennessee Sour Mash Whiskey” to sell “The Old No. 2 On Your Tennessee Carpet,” a reference to dog excrement. The bottle has a number of 40% ALC on it. BY VOL. It has a Proof with the word POO BY VOL. and “100% SMELLY.”
No one disputes that the guy is trying to make fun of himself. But alcohol and toys don’t mix well, and the same is true for beverages and excrement,” they wrote. There are more troubling combinations in the next case, including food and poison, cartoon characters and pornography, children’s toys and illegal drugs.
“It is ironic that America’s leading distiller of whiskey both lacks a sense of humor and does not recognize when it – and everyone else – has had enough,” the toy company told the court.
Nike said in a brief that it wasn’t a parody to use another’s trademark as a joke. “Courts therefore should take a disciplined approach to this important classification in cases where ‘parody’ is claimed.”
The justices heard arguments last year in a case relating to the late Andy Warhol and the late Prince, and they are expected to rule later this term. The justices attempted to determine when a new work based on a previous piece is significantly different from a previous work, and when it simply amounts to a duplicate of an existing work.
Making the contrary argument was VIP’s lawyer, Bennet Cooper. He said, “In our popular culture, famous brands are another kind of celebrity.” People are allowed to talk about and even make fun of celebrities.
As for the justices, they were all over the place, with conservative Justice Samuel Alito and liberal Justice Sonia Sotomayor both asking questions about how the first amendment right of free speech intersects with trademark laws that are meant to protect brands and other intellectual property.
“Absolutely,” replied lawyer Blatt, noting that business executives make blunders all the time. But Alito wasn’t buying it. “I had a dog. He said he knows something about dogs. The average person would not think of the question that way. This is whether a reasonable person standard should be used to simplify this whole thing.
A way to send this case to the lower court with instructions to either screen out or screen in some products was one of the ideas that Justice Elena Kagan and Justice Neil Gorsuch looked for.
The Product is a Standard Commercial Product. What the Court is going to Do with the Case of a “True” Shirt in St. Paul’s Day
The product is a standard commercial product. She said it was true. This shirt is not political. It’s not a movie. It’s not an artistic picture. It’s nothing of those things.”
Whatever the court is going to do with this case was not clear. Indeed, three of the justices were remarkably silent, giving no hints of their thinking whatsoever.
