US Supreme Court chews on Jack Daniel’s dog toy dispute

A dispute between Jack Daniel’s and the makers of a squeaking dog toy that mimics the whiskey’s signature bottle have given the Supreme Court a lot to chew.

The question for the court involves whether the toy’s maker infringed on Jack Daniel’s trademarks, and the justices were largely on their best behaviour, not picking up on the toy’s poop humour and puns.

Still, with three of the justices either completely or almost totally silent, it was not clear from the arguments on Wednesday whether Jack Daniel’s case is on the rocks or whether the makers of the Bad Spaniels toy had been, well, bad.

Justice Samuel Alito expressed scepticism for Jack Daniel’s arguments. “Could any reasonable person think that Jack Daniel’s had approved this use of the mark?” he asked, suggesting the toy was an unmistakable parody and legally acceptable.

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 suggested the toy was simply an “ordinary commercial product” that was trading on the look of the liquor company’s bottle.

Arizona-based VIP Products has been selling its Bad Spaniels toy since 2014. It’s part of its Silly Squeakers line of chew toys that mimic liquor, beer, wine and soft drink bottles. They include Mountain Drool, which parodies Mountain Dew, and Heini Sniff’n, which parodies Heineken.

While Jack Daniel’s bottles have the words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey”, the toy proclaims: “The Old No. 2 on Your Tennessee Carpet.” 

The original bottle notes it is 40 per cent alcohol by volume. The parody features a dog’s face and says it’s “43% Poo by Vol.” and “100% Smelly.”

The packaging of the toy, which retails for $US20 ($A30), notes in small font: “This product is not affiliated with Jack Daniel Distillery.”

Jack Daniel’s, based in Lynchburg, Tennessee, isn’t amused, with the company lawyer Lisa Blatt saying in a filing that Jack Daniel’s “welcomes jokes at its expense” but the toy VIP sells misleads customers, profits “from Jack Daniel’s hard-earned goodwill” and associates its “whiskey with excrement”.

The US’s major trademark 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. It says a lower court was wrong to side with VIP.

But VIP Products’ lawyer, Bennett E Cooper, told the justices in a court filing that Jack Daniel’s “seeks to use the Lanham Act to muzzle even VIP Products LLC’s playful dog-toy parody”.

Nike, Campbell Soup Company, outdoor brand Patagonia and jeans maker Levi Strauss are among those urging the justices to side with Jack Daniel’s. The company also has the support of the Biden administration.