1 of 2 | Whiskey maker Jack Daniel's is taking its trademark fight over a squeaky dog toy to the Supreme Court. Photo courtesy of Jack Daniel's Properties, Inc
Nov. 22 (UPI) -- The Supreme Court agreed Tuesday to hear a trademark case from Jack Daniel's in its fight over a squeaky dog toy, shaped like the whiskey maker's iconic square bottle and labeled "Bad Spaniels."
The Supreme Court is expected to hear the case early next year, after the U.S. Court of Appeals for the 9th Circuit sided with the dog toy maker in 2020.
Jack Daniel's argues the toys are harming their whisky brand and violate federal trademark law. Arizona-based VIP Products, which makes the whiskey bottle dog toys labeled "43% Poo by Vol." and the "Old No. 2 on Your Tennessee Carpet," said its products are protected "expressive work" under the First Amendment.
"It is ironic that America's leading distiller of whiskey both lacks a sense of humor and does not recognize when it -- and everyone else -- has had enough," VIP Products said in a filing opposing the motion. "VIP has never sold whiskey or other comestibles, nor has it used 'Jack Daniel's' in any way. It merely mimicked enough of the iconic bottle that people would get the joke."
The dog toy, which retails for about $17, contains a small label that reads "This product is not affiliated with Jack Daniel Distillery."
"To be sure, everyone likes a good joke. But VIP's profit-motivated 'joke' confuses consumers by taking advantage of Jack Daniel's hard-earned goodwill," Lisa Blatt, Jack Daniel's lead attorney, said in the company's filing.
Blatt argued allowing companies to "confuse consumers" sets a dangerous precedent.
"Other funny infringers can do the same with juice boxes or marijuana-infused candy," she wrote.
Jack Daniel's filing points to the Lanham Act which "customarily avoids violating the First Amendment, in part by enforcing a trademark only when consumers are likely to be misled or confused by the alleged infringer's use."
VIP Products makes other liquor and soda bottle dog toys under their brand Silly Squeakers. Heini Sniff'n parodies Heineken, Mountain Drool parodies Mountain Dew and ButtWiper parodied Budweiser, until a court barred VIP from selling the beer knock-off in 2008.