One cheeky dog toy manufacturer might just be barking up the wrong tree. The Supreme Court agreed on Monday to hear a case about the “Bad Spaniels” dog toy, a spoof on Jack Daniel’s bottles.
In the trademark case, Jack Daniel’s asserts that VIP Products’ toys impact the whiskey company’s brand image and reputation. It cites the toy’s bathroom humor, complete with phrases like “The Old No. 2 on Your Tennessee Carpet,” as being especially harmful to the Tennessee whiskey brand, according to CBS.
The plush toys, shaped like Jack Daniel’s iconic bottles, note “43 percent Poo by Vol.” and include a small disclaimer on the packaging: “This product is not affiliated with Jack Daniel Distillery.”
A District Court first ruled in favor of Jack Daniel’s in 2018, stating that the product was likely to cause consumer confusion and harm the brand’s image. However, in 2020, the United States Court of Appeals for the Ninth Circuit ruled with VIP Products, identifying the toys as “expressive works” protected under the First Amendment.
Several industry groups, including the Distilled Spirits Council of the United States (DISCUS), filed an amicus brief in support of Jack Daniel’s, according to a Nov. 21 press release.
“The 9th Circuit opinion threatens to undermine our commitment to responsibility by inviting trademark infringers to pirate famous alcohol beverage brands so long as they add a humorous twist,” DISCUS chief legal officer Courtney Armour states in the release. “This case involves dog toys, but it does not take much imagination to see how this could lead to ‘humorous’ products that encourage binge drinking and blacking out, underage drinking, or drunk driving. The industry must have control over their trademarks for responsible advertising initiatives to succeed.”
The Beer Institute, Brewers Association, American Distilled Spirits Alliance, American Craft Spirits Association, and Wine Institute filed the amicus brief alongside DISCUS.
The case likely won’t be argued until early 2023, as CBS reports. The Court’s decision could affect the cases of other large brands seeking legal action against copycat — err, copydog — products.
