Jack Danielâs has asked the justices to hear its case against the manufacturer of the plastic Bad Spaniels toy. The high court could say as soon as Monday whether the justices will agree. A number of major companies from the makers of Campbell Soup to outdoor brand Patagonia and jeans maker Levi Strauss have urged the justices to take what they say is an important case for trademark law.
The toy that has Jack Danielâs so doggone mad mimics the square shape of its whisky bottle as well as its black-and-white label and amber-colored liquor while adding what it calls âpoop humor.â While the original bottle has the words âOld No. 7 brandâ and âTennessee Sour Mash Whiskey,â the parody proclaims: âThe Old No. 2 on Your Tennessee Carpet.â Instead of the originalâs note that it is 40% alcohol by volume, the parody says itâs â43% Poo by Vol.â and â100% Smelly.â
The toy retails for about $13 to $20 and the packaging notes in small font: âThis product is not affiliated with Jack Daniel Distillery.â
The toyâs maker says Jack Danielâs canât take a joke. âIt is ironic that Americaâs leading distiller of whiskey both lacks a sense of humor and does not recognize when it â and everyone else â has had enough,â lawyers for Arizona-based VIP Products wrote the high court. They told the justices that Jack Danielâs has âwaged warâ against the company for âhaving the temerity to produce a pun-filled parodyâ of its bottle.
But Jack Danielâs lead attorney, Lisa Blatt, made no bones about the companyâs position in her filing.
âTo be sure, everyone likes a good joke. But VIPâs profit-motivated âjokeâ confuses consumers by taking advantage of Jack Danielâs hard-earned goodwill,â she wrote for the Louisville, Kentucky-based Brown-Forman Corp., Jack Danielâs parent company.
Blatt wrote that a lower court decision provides ânear-blanket protectionâ to humorous trademark infringement. And she said it has âbroad and dangerous consequences,â pointing to children who were hospitalized after eating marijuana-infused products that mimicked candy packaging.
If VIP Products is allowed to confuse consumers with dog toys, âother funny infringers can do the same with juice boxes or marijuana-infused candy,â Blatt wrote.
The toy is part of a line of VIP Products called Silly Squeakers that mimic liquor, beer, wine and soda bottles. They include Mountain Drool, which parodies Mountain Dew, and Heini Sniffân, which parodies Heineken. A court in 2008 barred the company from selling its Budweiser parody, ButtWiper.
After the company began selling its Bad Spaniels toy in 2014, Jack Danielâs told the company to stop, but VIP went to court to be allowed to continue to sell its product. Jack Danielâs won the first round in court but lost an appeal. The case reached the Supreme Court at an earlier stage, but the justices didnât bite.
Bad Spaniels isnât the only parody puppy toy to draw the ire of the brand it imitated. Luxury bag maker Louis Vuitton sued the makers of Chewy Vuiton over their plush purse dog toys. In 2007 a federal appeals court sided with the chew toyâs manufacturers, Nevada-based Haute Diggity Dog. Louis Vuitton didnât appeal to the Supreme Court.
The case is Jack Danielâs Properties Inc. v. VIP Products LLC, 22-148.
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