The Supreme Court on Thursday gave whiskey maker Jack Daniel’s motivation to raise a glass, giving the company another opportunity to win a trademark dispute with the makers of the Bad Spaniels dog toy.
“This case is about dog toys and whiskey, two items seldom appearing in the same sentence,” Justice Elena Kagan wrote in an opinion for the court.
Justice Elena Kagan was unusually jovial when she announced the unanimous court’s decision. At one point, she held up the toy, which squeaks and resembles the whiskey’s signature bottle, according to courtroom observers who watched her read a summary of the opinion.
Kagan said that a lower court’s decision favoring the rubber chew toy makers was flawed. Instead of deciding whether the toy manufacturer had broken trademark law, the court returned the case for further review.
“This case is about dog toys and whiskey, two items seldom appearing in the same sentence,” Kagan wrote in an assessment for the court. Kagan asked readers to “Recall what the bottle looks like (or better yet, retrieve a bottle from wherever you keep liquor; it’s probably there).”
Since 2014, VIP Products, based in Arizona, has been selling its Bad Spaniels toy. It is one of the chew toys in the Silly Squeakers line that looks like soda, beer, wine, and liquor bottles. They include Mountain Drool, which parodies Mountain Dew, and Heini Sniff’n, which parodies Heineken beer.
The label on the bottles of Jack Daniel’s reads, “Old No. The toy declares: “7 brands” and “Tennessee Sour Mash Whiskey.” The Old Number 2 on Your Carpet in Tennessee.” It states that it has 40% alcohol by volume on the original bottle. The parody includes a dog’s face and says it’s “43% Poo by Vol.” and “100% Smelly.”
The following is written in small font on the toy’s packaging, which costs around $20: Jack Daniel Distillery is not associated with this product.
Lynchburg, Tennessee-based Jack Daniel’s was not amused. The toy profits “from Jack Daniel’s hard-earned goodwill,” according to the company’s lawyers, and is associated with “whiskey with excrement.”
The Lanham Act, the nation’s fundamental federal trademark law, is at the center of the case. It says that using a trademark in a way that “likely to confuse… as to the origin, sponsorship, or approval of… goods” is against the law.
However, because the lower court stated that the toy was an “expressive work” conveying a humorous message and required to be evaluated under a different test, it did not address the issue of consumer confusion. “The only question, in this case, going forward is whether the Bad Spaniels marks are likely to confuse,” Kagan stated.
Additionally, Kagan stated that a lower court’s analysis of Jack Daniel’s claim against the toy company for linking “its whiskey to less savory substances” was incorrect.
The court issued four opinions on Thursday, one of which was a 5-4 decision in favor of Black voters in an Alabama congressional redistricting case. Due to its potential to weaken the landmark Voting Rights Act, the case had been closely watched.
Jack Daniel’s Properties, Inc. v. VIP Products LLC, 22-148 is the case.