THE phrase 'dog poop' was uttered several times on Wednesday in the hallowed chamber of the US Supreme Court as justices seemed baffled in a case concerning a squeaky chew toy for pets that closely resembles the famous black label on Jack Daniel's whiskey.
The chew toy, named 'Bad Spaniels,' has the distinctive shape of the distillery's black-labeled square whiskey bottles, but with added toilet humor.
While the Tennessee whiskey has an alcohol content of 40%, Bad Spaniels is – allegedly – made of '43% poo' that may end up on 'Tennessee carpets.'
Deploring an attack on its image, the iconic distillery sued Arizona-based VIP Products, marketer of the chew toy, and alleged harm to its trademark. After several twists and turns, the case has now ended up in front of the Supreme Court.
The dispute may have wider ramifications for how trademark law is applied in the United States, as the court's nine judges weigh whether free speech trumps intellectual property rights.
The matter "does seem to me to present serious First Amendment issues" that protect freedom of expression, Justice Samuel Alito said.
VIP, which also sells fake cans of 'Canine Cola,' says it is shielded behind the right to parody, which authorises infringements of copyright in the cultural sphere.
"There are a lot of products that take themselves too seriously," attorney Bennett Cooper told the court on behalf of VIP Products.
"Jack Daniels advertised itself in a serious way that Jack is everyone's friend. And Bad Spaniels is a parody – playful in comparing Jack to man's other best friend."
Justice Elena Kagan wasn't immediately convinced.
"Maybe I just have no sense of humour, but what's the parody?" she asked. "You use the mark of a large company (and say) well guys, they must take themselves too seriously, because they're a big company."
'I had a dog'
The spirits maker, which is owned by Kentucky-based Brown-Forman Corp., took legal action in 2014, when the dog toy appeared on the market. After an initial court victory, Jack Daniel's lost on appeal.
As the case made its way to the Supreme Court, Jack Daniel's was backed by other big American corporations, such as food giant Campbell, whose soup cans were featured in Andy Warhol's famous paintings, and clothes makers Patagonia and Levi Strauss, who argued that such humour can hurt their reputations.
"This case involves a dog toy that copies Jack Daniels' trademark... and associates its whiskey with dog poop," said Lisa Blatt, the distillery's attorney.
She argued that the parodying company did too much copying from Jack Daniel's and not enough to distinguish the two products, leading to consumer confusion.
"It's not whether you get the joke (but whether) you get that somebody other than the brand was making the joke," Blatt said.
Alito suggested that the joke wasn't hard to grasp.
If somebody approached the distillery CEO and suggested the company produce a dog toy with a similar label and a similar name, but filled with dog urine, "You think the CEO is going to say, 'That's a great idea. We're going to produce that thing!'?" Alito interjected.
"Justice Alito," Blatt responded, "you went to law school. You're very smart. You're analytical."
"Well, I went to law school where I didn't learn any law," Alito responded. "I just, I had a dog. I know something about dogs."
The Supreme Court must issue a ruling in the case before June 30. – AFP, March 23, 2023
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