Squeaky Jack Daniels Dog Toy in Supreme Court

A dispute between Jack Daniel’s and the makers of a squeaking Bad Spaniels dog toy that parodies the whiskey’s signature bottle gave the Supreme Court a lot to chew on.

The question for the court involves whether the toy’s maker infringed on Jack Daniel’s trademarks, and to anyone’s knowledge the first time a dog toy has bounced into the top court.

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, CA 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.

At the Supreme Court, three of the justices have been, so far, silent, So, it’s unclear if whether or not the Jack Daniel’s case is on the rocks or whether the makers of the Bad Spaniels toy had been, well, bad.

The words “Old No. 7 Brand Tennessee Sour Mash Whiskey” on the bottle are replaced on the chew toy by “the Old No. 2, on your Tennessee carpet.” Where Jack Daniel’s says its product is 40 percent alcohol by volume, the Bad Spaniels toy is said to be “43 percent poo.”

Justice Samuel Alito expressed skepticism for Jack Daniel’s arguments. “Could any reasonable person think that Jack Daniel’s had approved this use of the mark?” he asked at one point, suggesting the toy was an unmistakable parody and therefore legally acceptable.

The real Jack Daniel’s liquor doesn’t actually squeak, though those who drink too much of it might.

When the company’s lawyer pushed back on the justice’s knowledge about dog toys, Alito responded, “I had a dog. I know something about dogs.” His late springer spaniel Zeus sometimes visited the court.

However,  Justice Elena Kagan seemed  ready to rule against the toy’s manufacturer. “Maybe I just have no sense of humor,” she reportedly said. “But what’s the parody?”

The toy has been on the market from Arizona-based VIP Products since 2014, a part of its Silly Squeakers line of chew toys that mimic liquor, beer, wine and soda bottles. They include Mountain Drool, which parodies Mountain Dew.

Also,  the packaging of the toy, which retails for about $20, notes in small font: “This product is not affiliated with Jack Daniel’s Distillery.”

Still, Lynchburg, TN based Jack Daniel’s clearly isn’t amused.

At the heart of this case is the Lanham Act, the country’s major trademark law which should not be muzzled. The Act prohibits using a trademark in a way “likely to cause confusion … as to the origin, sponsorship, or approval of … goods.”

Not sure, however, how people can be confused between the toy and the real liquid libation.