WASHINGTON — The next frontier in First Amendment law at the Supreme Court involves a trademark dispute over a chew toy for dogs shaped like a liquor bottle.
The justices agreed last month to decide the fate of the Bad Spaniels Silly Squeaker dog toy, which looks a lot like a bottle of Jack Daniel’s but with, as an appeals court judge put it, “lighthearted, dog-related alterations.”
The jokes are scatological. The words “Old No. 7 Brand Tennessee Sour Mash Whiskey” on the bottle are replaced on the toy by “the Old No. 2, on your Tennessee carpet.” Where Jack Daniel’s says its product is 40 percent alcohol by volume, Bad Spaniels’s is said to be “43 percent poo.”
A tag attached to the toy says it is “not affiliated with Jack Daniel Distillery.”
Trademark cases generally turn on whether the public is likely to be confused about a product’s source. In the Bad Spaniels case, a unanimous three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, said the First Amendment requires a more demanding test when the challenged product is expressing an idea or point of view.
“The Bad Spaniels dog toy, although surely not the equivalent of the Mona Lisa, is an expressive work” that uses irreverent humor and wordplay to poke fun at Jack Daniel’s, Judge Andrew D. Hurwitz wrote for the panel.
In a petition seeking Supreme Court review, lawyers for Jack Daniel’s questioned the appeals court’s reliance on a “purported First Amendment interest in making poop-themed jokes at Jack Daniel’s expense.”
“To be sure,” the brief added, “everyone likes a good joke.” But this one, the brief said, “confuses consumers by taking advantage of Jack Daniel’s hard-earned good will.”
Understand the U.S. Supreme Court’s New Term
A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Legitimacy concerns swirl. The court’s aggressive approach has led its approval ratings to plummet. In a recent Gallup poll, 58 percent of Americans said they disapproved of the job the Supreme Court was doing. Such findings seem to have prompted several justices to discuss whether the court’s legitimacy was in peril in recent public appearances.
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Election laws. The court will hear arguments in a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions. In a rare plea, state chief justices urged the court to reject that approach.
Discrimination against gay couples. The justices will hear an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
Lawyers for the toy’s manufacturer, VIP Products, said it was following “in the playful parodic tradition that has ranged over a half-century from Topps’s Wacky Packages trading cards through ‘Weird Al’ Yankovic.”
The trading cards, for fake products that mimicked real ones, like Ratz Crackers, Jolly Mean Giant and Gulp Oil, were enormously popular in the 1970s, for a time outselling Topps baseball cards. “Yet the world did not end,” VIP Products told the justices.
Lawyers for Jack Daniel’s responded that “the test for this court’s review is not Armageddon.” The Bad Spaniels toy, they wrote, “harms Jack Daniel’s brand, including by associating whiskey with excrement and toys that appeal to children.”
Several trade associations for producers and importers of alcoholic beverages told the justices in a brief supporting Jack Daniel’s that the appeals court’s ruling had undermined their efforts to promote responsible drinking.
“Indeed,” the brief said, “the Ninth Circuit’s rule would appear to protect infringing activity that takes the form of jokes about underage drinking, excessive consumption or drunk driving. From children’s toys to drinking game kits to automobile accessories, those making infringing products need only employ humor to escape liability for trademark infringement.”
Lawyers for VIP Products called that idea far-fetched.
“VIP sells a dog toy called ‘Bad Spaniels Silly Squeaker’ with a picture of a dog and no reference to alcohol, and the only people who would understand what was being parodied are people already familiar with whiskey,” the company’s brief said. “No one — not a child, not a dog — is going to be harmed by VIP’s parody.”
Lawyers for Jack Daniel’s said that response was flippant.
“Children need not drink whiskey to know that they enjoy playing with dog toys using Jack Daniel’s marks,” they wrote. “When they see a real Jack Daniel’s bottle, they might be more inclined to consume its contents.”
The American Intellectual Property Law Association, in a brief urging the court to grant review in the case, proposed a middle ground. The First Amendment has a role to play in trademark infringement suits, the group’s lawyers wrote, but only if they involve artistic works. Chew toys are utilitarian commercial products, their brief said, and do not qualify.
More on the U.S. Supreme Court
- Student Loan Forgiveness: The Supreme Court agreed to decide whether the Biden administration had overstepped its authority with its plan to wipe out billions of dollars in student debt.
- A Secret Influence Campaign: An anti-abortion activist led a secretive, yearslong effort to influence the justices of the Supreme Court. This is the story of the Rev. Rob Schenck.
- Another Breach: Years before the leaked draft opinion overturning Roe v. Wade, Mr. Schenck said he had been tipped off to the outcome of a landmark contraception case.
- Trump’s Tax Returns: The justices cleared the way for a House committee to obtain former President Donald J. Trump’s tax returns, refusing his request to block their release.
The Supreme Court is likely to hear arguments in the case, Jack Daniel’s Properties v. VIP Products, No. 22-148, in March and issue a decision by June.
At least one other court has rejected a trademark infringement claim against a dog toy, though without bringing the First Amendment into it.
In 2007, the Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled in favor of a company called Haute Diggity Dog, saying it was entitled to sell Chewy Vuiton dog toys that looked like miniature Louis Vuitton handbags.
Judge Paul V. Niemeyer, writing for a unanimous three-judge panel, said the toy “immediately conveys a joking and amusing parody.”
“The furry little ‘Chewy Vuiton’ imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a Louis Vuitton handbag, which must not be chewed by a dog,” he wrote, adding: “The dog toy irreverently presents haute couture as an object for casual canine destruction. The satire is unmistakable.”
On the other hand, a federal judge in Missouri in 2008 issued a preliminary injunction against a VIP dog toy, this one based on Budweiser’s beer bottles. “VIP’s parody argument does not defeat the likelihood of confusion,” the judge ruled.
Rebecca Tushnet, a law professor at Harvard, said humor should count in the chew toy case now before the justices.
“VIP’s Bad Spaniels dog toys are unambiguously a joke, one that Jack Daniel’s doesn’t appreciate,” she wrote in a friend-of-the-court brief filed in an earlier phase of the case. “But trademark law does not — and cannot constitutionally — give Jack Daniel’s the right to prevent others from making a joke at their expense, even if the vehicle for the joke is a dog toy.”