US Supreme Court poised to hear dog toy suit
The US Supreme Court is expected to decide as soon as Monday whether it will hear whiskey brand Jack Daniel’s trademark infringement case against dog toy maker VIP Products, whose ‘Bad Spaniels’ parody squeaky toy mimics both the shape and the design of the distillery’s iconic bottle.
The dog-toy version of the bottle replaces Jack Daniel’s “Old No.7 brand” and “Tennessee Sour Mash Whiskey” with “The Old No.2 on Your Tennessee Carpet,” further stretching the fecal wordplay by substituting “43% poo by vol.” and “100% smelly” for the whiskey’s 40% alcohol and 100 proof labeling.
The whiskey manufacturer’s parent company Brown-Forman Corp. has urged the high court to consider the case, insisting that a lower court’s ruling in VIP’s favor provides “near-blanket protection” to trademark-infringing parodies. The offending toy “confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill,” and such confusion could have “broad and dangerous consequences,” Brown-Forman’s lead attorney Lisa Blatt wrote.
If a dog toy company can mimic the identifying markers of Jack Daniel’s packaging, “other funny infringers can do the same with juice boxes or marijuana-infused candy,” Blatt argued, alluding to several cases in which children accidentally consumed cannabis edibles that had been packaged to resemble popular candy brands.
VIP’s lawyers disagreed, commenting: “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 beverage company has simply “waged war” against the dog-toy maker for “having the temerity to produce a pun-filled parody” of its container, they argued.
VIP has been selling the Bad Spaniels squeaky toy since 2014. While Jack Daniel’s took them to court and initially won, the decision was reversed in VIP’s favor on appeal, and the company’s first attempt to have the case picked up by the Supreme Court was declined.
Several other popular brands, including Campbell Soup and Levi Strauss jeans, are backing the distiller in its effort to convince the Supreme Court of the importance of the case this time around. There is some precedent – a court in 2008 banned VIP from selling its Budweiser knockoff ButtWiper – but in 2007, a federal appeals court sided with another dog toy maker, Haute Diggity Dog, defending its right to sell “Chewy Vuitton” chewy purse toys against trademark owner Louis Vuitton.