Justices Get Creative in Jack Daniel’s Dog Toy Hypotheticals

US Supreme Court arguments are serious business. Except when they aren’t.

A case involving a poop-themed riff on a popular whiskey bottle seemed destined to fall in the latter category, and Wednesday’s arguments in Jack Daniel’s v. VIP Products didn’t disappoint.

Consider the opening line from Jack Daniel’s attorney Lisa Blatt: “This case involves a dog toy that copies Jack Daniel’s’ trademark and trade dress and associates its whiskey with dog poop.”

The liquor company is suing the maker of a bottle-shaped dog toy that swaps the label’s “Old No. 7 Tennessee Sour Mash Whiskey” with “Old No. 2 on your Tennessee Carpet.” It says the toy is confusing for consumers and tarnishes the iconic brand.

The “Bad Spaniels” toy maker says there are special First Amendment protections for parody and that trademark laws must give way to the First Amendment.

The justices and advocates came up with creative ways to test the reach of that argument.

Dog Urine

Justice Samuel Alito pushed back at Blatt’s argument that any consumer would conclude that Jack Daniel’s had approved the toy rather than understand that it is a parody.

“Let me envision this scene,” Alito said. “Somebody in Jack Daniel’s comes to the CEO and says: ‘I have a great idea for a product that we’re going to produce. It’s going to be a dog toy. And it’s going to have a label that looks a lot like our label. And it’s going to have a name that looks a lot like our name, Bad Spaniels. And what’s going to be purportedly in this dog toy is dog urine.’”

“You think the CEO is going to say that’s a great idea?” Alito asked Blatt of Williams & Connolly.

“I think if you are selling urine you are probably going to win,” Blatt responded, agreeing that no one would assume the product was made by Jack Daniel’s.

Alito clarified that he wasn’t talking about actual urine but this particular product that purports to have dog excrement inside. Would that confuse consumers? he wondered.

‘What’s the Parody?’

When the toy maker’s attorney, Bennett Cooper, got up to argue, Justice Elena Kagan said she didn’t get the joke the company was trying to make.

“Because maybe I just have no sense of humor, but what’s the parody?” Kagan asked.

“The parody is to make fun of marks that take themselves seriously,” Cooper responded.

“Well, I mean, you say that, but know, you make fun of a lot of marks: Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool,” Kagan said. “Are all of these companies taking themselves too seriously?”

She added that it doesn’t seem like “Stella Artois takes itself very seriously. They have very funny commercials.”

Drunk Party Logo

Justice Sonia Sotomayor wondered if there were “easy” cases involving parody that would obviously be entitled to First Amendment protections, particularly those involving political statements.

An activist takes a political party’s animal logo and “makes a t-shirt where the animal looks drunk, accompanied by a slogan: ‘Time to sober up, America,’” Sotomayor proposed. “And they wear that proudly at a protest or here in court.”

The fact that a product is funny isn’t relevant, Blatt said. The question is whether the person reading the joke understands who is making it.

“‘Ha, ha, ha,’ is not a standard under the Lanham Act,” Blatt said, referring to federal trademark law.

Diamond Purchase

What about a poster that says that a consumer’s purchase of a diamond will help fund a prosthetic arm for a worker who lost a limb mining for the jewel, Alito asked, pulling a hypothetical from one of the friend-of-the-court briefs.

“At the bottom, it says: ‘De Beers. From her fingers to his,’” Alito said, referring to the diamond miner.

The more ridiculous or condescending the parody gets, the easier the case is because consumers are less likely to be confused, Blatt suggested.