U.S. Supreme Court Bites on Dog Toy

Will the real Jack Daniels not squeak.  Believe it or not – as the violent crimes, including mass shootings continue to rise; immigration issues are out of control and personal rights issues like abortion are being questioned – the Supreme Court decided that a dog toy is guilty of trademark infringement and that the First Amendment did not protect the toy.

The dog toy, the Bad Spaniels Silly Squeaker, has the shape and other distinctive features are close to the original packaging of Jack Daniels.

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” on toy. Where Jack Daniel’s says its product is 40 percent alcohol by volume, the Bad Spaniels toy is said to be “43 percent poo.”

What’s more – if you somehow get confused, a tag attached to the toy says it is “not affiliated with Jack Daniel Distillery.”

Certainly, I’m no lawyer or Supreme Court judge, how can the real liquid libation be confused with a dog toy? However, the judges did have something to chew on.

Justice Elena Kagan, writing for a unanimous court, seemed amused by the dispute. “This case is about dog toys and whiskey,” she wrote, “two items seldom appearing in the same sentence.”

She added that the characteristics of the whiskey bottle were familiar to almost everyone.

The Supreme Court does not often decide cases focusing on core issues of trademark law, so the vigorous discussion of the importance of confusion here likely will be considered frequently by lower courts and in detail by scholars. But Justice Kagan, in returning the case to lower courts to analyze it, said the chew toy’s mockery of the liquor bottle had to figure in the analysis, as it was not obvious that consumers would think that Jack Daniel’s was responsible for a toy poking fun at itself.

Justice Samuel A. Alito Jr. made a similar point when the case was argued in March, imagining a pitch meeting with a Jack Daniel’s executive. “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,’” Justice Alito said, suggesting that consumers were unlikely to think the chew toy was produced or endorsed by the distiller.

Lawyers for the toy’s manufacturer, VIP Products, said it was following “in the playful parodic tradition that has ranged over a half-century from Topps’s Wacky Packages trading cards through ‘Weird Al’ Yankovic.” Dogs could just ‘Eat It.’