WASHINGTON – In a raucous Supreme Court argument that referenced drunk elephants, sex toys and dog poop, the justices wrestled Wednesday with whether a squeezy dog toy that mimics a bottle of Jack Daniel’s whiskey violated that company’s trademark, or whether it is protected as a parody under the First Amendment.
Jack Daniel’s Properties argued the toy, which looks like a bottle of the distiller’s whiskey but carries the words “Bad Spaniels” on the label, could confuse consumers about who made the product and could tarnish the company’s reputation. The dog toy company, Arizona-based VIP Products, said the toy is a parody, entitled to free speech protection.
On its own, the dog toy at issue would have inspired an odd discussion at the usually buttoned-down high court: Part of the comedic element of the toy are its dog excrement jokes. Instead of including the “Old No. 7” emblazoned on the highly recognizable label of a Jack Daniel’s bottle, the toy references “the Old No. 2 on your Tennessee carpet.”
Jokes aside, the case could have serious implications for other well-known products. That led to a litany of hypotheticals: What if a company made a sex toy that mimicked some well-known product in a way the manufacturer of that original protect objects to? What if someone sold a t-shirt depicting an inebriated elephant as the symbol of the Republican Party with a slogan that read “it’s time to sober up, America”?
Why is the Supreme Court debating whiskey and dog toys?
- At issue is whether humorous products that parody a brand enjoy special protection from trademark claims under the First Amendment or whether funny knock-offs violate trademark law because they could confuse consumers or disparage the original product.
- The case has drawn attention and briefs from some well-known brands, including Campbell Soup Co. and Levi Strauss & Co., who are backing Jack Daniel’s.
- The U.S. Court of Appeals for the 9th Circuit sided with toy maker, ruling that – because the product is a parody – it enjoys special protection from trademark claims.
What did the Supreme Court justices say about the case?
Trademark cases can divide the Supreme Court in unusual ways, and it wasn’t clear, based on the argument Wednesday, which way the court may be leaning. Two justices – Brett Kavanaugh and Amy Coney Barrett – asked no questions at all.
Justice Elena Kagan was among the most clear. She suggested the dog toy was obviously a commercial product, “leagues away from” the kind of speech that might receive deference by lower courts resolving similar trademark disputes.
“This is not a political t-shirt. It’s not film. It’s not an artistic photograph,” Kagan said at one point. “I don’t see the parody but, you know, whatever,” she said to laugher.
“Dog toys are just utilitarian goods,” she said. “That’s not a First Amendment problem.”
But Justice Samuel Alito questioned whether any reasonable consumer would assume that the “Bad Spaniels” toy, with all its references to dog excrement, had anything to do with the whiskey distiller. And, he said, he worried about the spillover effects of a ruling in favor of Jack Daniel’s if it limits the ability of people to parody other products.
“I’m concerned about the First Amendment implications of your position,” he told the attorney representing the liquor company, veteran Supreme Court lawyer Lisa Blatt.
Alito was the only justice who, during the course of the arguments, acknowledged having a pet. At one point Blatt questioned whether Supreme Court justices, given their life experiences and education, truly represent the average American consumer.
“You went to law school. You’re very smart, You’re analytical. You have hindsight bias,” Blatt said.
“Well, I went to a law school where I didn’t learn any law,” joked Alito, who graduated from Yale Law School.
“I had a dog,” Alito said. “I know something about dogs.”