Jack Daniels and the Dog Toy Drama
Imagine you are shopping for a new toy for your furry companion. You find a whisky-bottle-shaped squeaky toy with what looks a lot like a Jack Daniels Label with the name “Bad Spaniels.” At first glance, would you assume that Jack Daniels made the toy - or would parody and mimicry come to mind?
In March, the U.S. Supreme Court heard oral arguments over the trademark dispute between Jack Daniels Properties Inc., and VIP Products LLC (the maker of the Bad Spaniels squeaky toy). The toy’s label looks like the Jack Daniels label -- but with a cartoon spaniel and a caption reading: “Bad Spaniels, the Old No. 2, on your Tennessee Carpet.” The bottom of the toy reads, “43% POO BY VOL.” and “100% SMELLY.” Additionally, the label on the back of the toy includes, “This product is not affiliated with Jack Daniel Distillery.”
But this is not the first time the Supreme Court has needed to address dog toy drama… In 2007, the Court wrestled with Haute Diggity Dog’s purse-shaped dog toys bearing the name “Chewy Vuiton,” mimicking high-fashion Louis Vuitton. The Supreme Court found no dilution by tarnishment, no trade dress infringement, and no copyright infringement.
However, the market played a large part in the “Chewy Vuiton” case. Other than in one department store, $1,200 purses and cheap dg toys were not sold in the same place. Jack Daniels sells licensed merchandise, including dog products. But Justice Alito brought up a great point: would Jack Daniels want to sell a toy where “what’s going to be purportedly in this dog toy is dog urine.”
This dog toy drama started 8 years ago. In 2021, an Arizona district court found for VIP finding that the whisky bottle speaker was not “explicitly misleading.” Now this case is before the highest court in the US with arguments full of surrounding First Amendment rights and likelihood of confusion.
Who would be confused? Is it outlandish that a company selling alcohol would also sell toys for Man’s Best Friend? Dogs have been part of advertising campaigns for years, so selling a dog toy was not a far leap. Bud Light now has an advertisement for an adorable puppy with a toy labeled “Pup Light” and has a variety of dog toys for sale.
Why does this matter? A successful trademark parody must be its own expressive original but similar enough to call to mind the original it is trying to mimic. Prohibiting parody trademarks oppresses speech and impairs artists.
If you’re questioning whether or not something could be perceived as funny as opposed to illegal, it’s best to check with an Intellectual Property attorney before launching a product.