Supreme Court takes Jack Daniel's case against dog toy maker for parody A bottle of Jack Daniel's Tennessee Whiskey is displayed next to a Bad Spaniels dog toy in Arlington, Va. The Supreme Court will hear a dispute this week over a dog toy that got whiskey maker Jack Daniel's barking mad. Jack Daniel's had asked the justices to hear its case against the manufacturer of the plastic Bad Spaniels toy. The toy mimics the Jack Daniel's bottle and label but is a parody. While the original bottle has the words "Old No. 7 brand" and "Tennessee Sour Mash Whiskey," the parody proclaims: "The Old No. 2 on Your Tennessee Carpet." Instead of the original's note that it is 40% alcohol by volume, the parody says it's "43% Poo by Vol." and "100% Smelly." A number of major companies from the makers of Campbell Soup to outdoor brand Patagonia and jeans maker Levi Strauss had urged the justices to take what they said was an important case for trademark law. Lawyers for the toy's maker, Arizona-based VIP Products, told the high court that Jack Daniel's can't take a joke. They said Jack Daniel's has "waged war" against the company for "having the temerity to produce a pun-filled parody" of its bottle. The toy retails for about $13 to $20 and the packaging notes in small font: "This product is not affiliated with Jack Daniel Distillery." Jack Daniel's lead attorney, Lisa Blatt, made no bones about the company's position in her court filing. "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," she wrote for the Louisville, Ky.-based Brown-Forman Corp., Jack Daniel's parent company. Blatt wrote that a lower court decision provides "near-blanket protection" to humorous trademark infringement.
The case law is against Jack Daniels a bit going into this. The court has ruled, particularly in regard to various LL Bean catalog cases, that it is hard to show harm if the consumer pretty much knows that it is parody. First Amendment and all. LL Bean gets hit with various spoof versions of its catalogs from time to time. Catalogs showing dogs with sports bras. Or showing yuppies with garlic presses on their belts while hiking or some with pornographic content. As I recall, LL Bean has lost most of those cases and at least one went to the Supreme Court. Some of those catalogs were pretty frigging funny too. I doubt that they harmed LL Bean a dime. Nevertheless, if the court is taking this Jack Daniels case they might tidy up some aspects of the law around it. Every case comes with a different set of facts.