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March 26 (UPI) -- The Supreme Court heard oral arguments this week that may shape the understanding of a company's right to protect its brand from parody, with the high court justices expressing varied views during the hearing. The case pits whiskey-maker Jack Daniel's against dog-toy maker VIP Products. At the center of the argument is a squeaky toy shaped and dressed like the iconic Jack Daniel's No. 7 Tennessee Whiskey bottle, labeled "Bad Spaniels."
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Jack Daniel's petitioned the court that the Bad Spaniels dog toy is likely to confuse customers, violating trademark law.
Lisa Blatt, representing Jack Daniels, noted that Jack Daniels makes dog products and sells licensed merchandise "in the same markets" as the Bad Spaniels dog toy.
Blatt told the Supreme Court on Wednesday that a decision in favor of the liquor company would likely unravel the precedent established in the case of Rogers v. Grimaldi in 1989, according to court documents.
That case set out to determine how the Lanham Act -- the cornerstone federal trademark act in U.S. law -- applies to the concepts of parody and confusion when borrowing branded design.
In the case of Rogers v. Grimaldi, the Second Circuit Court upheld a lower court's decision that Alberto Grimaldi was not liable for emulating the work of Ginger Rogers and Fred Astaire in the Federico Fellini film "Ginger and Fred."
Justice Clarence Thomas asked Blatt if there is any way to maintain the ruling in the Rogers v. Grimaldi case in a victory on behalf of Jack Daniel's. Blatt said there is not.
"No, we can win this case on a narrow grounds," Blatt said. "There's no way to keep Rogers and be faithful to the text. We can win this case by the court assuming there's an atextual exception, and this Court can go on and invent an atextual break to that exception."
Justice Elena Kagan questioned Blatt why she sought to test the Rogers decision in this case, calling it a "broad argument," while Justice Samuel Alito asked how the VIP dog toy could be confused with a Jack Daniels product.
As Blatt and later solicitor general Matthew Guarnieri made their case that Jack Daniel's trademark falls under a property right and limits the use of some speech, the justices did not indicate a prevailing consensus.
Kagan questioned VIP lawyer Bennett Cooper about how the dog toy parodied the iconic liquor brand, an inquiry suggesting the justices were considering First Amendment ramifications.
"Maybe I have no sense of humor, but what's the parody?" Kagan asked.
Cooper responded that "the parody is to make fun of marks that take themselves seriously."
Kagan expressed concern that Cooper's definition of parody suggested any big brand could be subject to parody.
Justices Alito and Sonia Sotomayor did indicate that there are free speech interests.
"You know, there is a text that says that Congress shall make no law infringing the freedom of speech," Alito said. "That's a text that takes precedence over the Lanham Act."
The decision that the Supreme Court ultimately comes to will have wider implications, as companies like Nike, Levi Strauss, Patagonia and the Campbell Soup Company have expressed.
These were among the notable brands to have filed amicus briefs in support of Jack Daniel's. Nike in particular noted its concern over the legal protections of its intellectual property.
