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Jack Daniel's takes on squeaky dog toy maker in US Supreme Court trademark case

Jack Daniel's have a bone to pick with a certain dog toy company
Jack Daniel's have a bone to pick with a certain dog toy company Copyright AP Photo
Copyright AP Photo
By Theo FarrantAP
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The Supreme Court found itself in the middle of an unusual dispute involving a squeaking dog toy that mimics the iconic bottle of Jack Daniel's whiskey.

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A recent dispute between Jack Daniel's and the makers of a squeaky dog toy that mimics the famous Tennessee whiskey company's signature bottle has given the Supreme Court a lot to consider. 

Jack Daniel's claims the toy infringes on its trademark and is confusing consumers. The toy maker argues that it is an obvious parody and should be protected as free speech. 

The Bad Spaniels toy, designed to resemble a Jack Daniel's bottle, features a spaniel and the name "Bad Spaniels" on the label, deviating from the iconic Jack Daniel's branding. 

Instead of the usual "40% alcohol by volume" label, the toy boasts "43% poo by volume, 100% smelly." 

The packaging of the toy, which retails for around $20 (approx. €18), notes in small font: "This product is not affiliated with Jack Daniel Distillery."

VIP Products, based in Arizona, has been selling the toy since 2014, as part of its Silly Squeakers range of chew toys, which imitate liquor, beer, wine, and soda bottles. 

Other toys in the range include Mountain Drool, a parody of Mountain Dew, and Heini Sniff'n, a parody of Heineken.

When parody and trademark collide

Toby Talbot/AP2011
Bottles of Jack Daniel's Tennessee Whiskey line the shelves of a liquor outletToby Talbot/AP2011

At the heart of the case is the Lanham Act, the country's major trademark law. It prohibits using a trademark in a way "likely to cause confusion ... as to the origin, sponsorship, or approval of ... goods." 

Jack Daniel's says that's what the dog toy does.

"Jack Daniel's loves dogs and appreciates a good joke as much as anyone. But Jack Daniel's likes its customers even more, and doesn't want them confused or associating its fine whiskey with dog poop," wrote the company's attorney Lisa Blatt in a filing with the high court.

Blatt wrote that Jack Daniel's "welcomes jokes at its expense" but that the toy VIP sells misleads customers, profits "from Jack Daniel's hard-earned goodwill" and associates its "whiskey with excrement."

AP Photo
Bad Spaniels dog toysAP Photo

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 legally acceptable.

When the company's lawyer pushed back on the justice's knowledge about dog toys, Alito responded in part with: "I had a dog. I know something about dogs." His late springer spaniel Zeus sometimes visited the court.

But Justice Elena Kagan seemed more ready to rule against the toy's manufacturer. "Maybe I just have no sense of humour," Kagan said to laughter. "But what's the parody?"

Kagan, whose dry wit is often on display in the courtroom and in her writing, suggested the toy is simply an "ordinary commercial product" that is trading on the look of the liquor company's bottle.

Nike, Campbell Soup Company, Patagonia, and Levi Strauss have also shared their support for the whiskey maker in the case. 

The Supreme Court heard arguments on Wednesday 22 March, and will likely issue its decision in June.

Similar dog disputes

Toby Talbot/AP2011
Bottles of Jack Daniel's Tennessee Whiskey line the shelves of a liquor outletToby Talbot/AP2011

The case between Jack Daniel's and VIP Products bears similarities to the case of Louis Vuitton Malletier S.A. v. Haute Diggity Dog in 2007. 

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In that case, heard in the United States District Court for the Eastern District of Virginia, Louis Vuitton sued Haute Diggity Dog for creating a dog toy that resembled one of its iconic handbags. 

Like Jack Daniel's, Louis Vuitton claimed that the dog toy was likely to cause confusion among customers, who might mistake it for a genuine Louis Vuitton product. 

However, the court ultimately ruled in favor of Haute Diggity Dog, stating that the toy was a parody protected under the First Amendment.

Video editor • Theo Farrant

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