© Reuters. FILE PHOTO: A police officer patrols with his K9 dog in front of the U.S. Supreme Court in Washington, D.C., U.S., June 29, 2022. REUTERS/Kevin Lamarque/File Photo
By Blake Brittain
WASHINGTON (Reuters) – A trademark dispute over a poop-themed dog toy shaped like a Jack Daniel’s whiskey bottle coming before the U.S. Supreme Court could redefine how the judiciary applies constitutional free speech rights to trademark law.
In a case to be argued on Wednesday, the nine justices are expected to use this legal dogfight to clarify the line between a parody protected by the U.S. Constitution’s First Amendment and a trademark-infringing ripoff, with repercussions extending beyond booze and pet accessories. A ruling is due by the end of June.
Jack Daniel’s Properties Inc, owned by Louisville, Kentucky-based Brown-Forman Corp, is appealing a lower court’s decision that Phoenix-based VIP Products LLC’s “Bad Spaniels” chew toy is an “expressive work” protected by the First Amendment.
Some companies have expressed concern that a ruling against Jack Daniel’s would weaken their control over their brands and reputations. Others argue that a ruling favoring the whiskey maker would stifle free-speech rights.
“This is an interesting case because it’s a court that does care about the First Amendment but also cares about business,” said Elizabeth Brannen, a partner at the law firm Stris & Maher who has worked on intellectual property cases before the Supreme Court. “And this is a case where those interests intersect in a way that’s kind of hard to sort out.”
The toy mimics Lynchburg, Tennessee-based Jack Daniel’s famous whiskey bottles with humorous dog-themed alterations – replacing “Old No. 7” with “the Old No. 2, on your Tennessee Carpet” and alcohol descriptions with “43% Poo By Vol.” and “100% Smelly.”
“Jack Daniel’s loves dogs and appreciates a good joke as much as anyone,” the company told the justices in a brief. “But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop.”
THE ROGERS TEST
The San Francisco-based 9th U.S. Circuit Court of Appeals in its 2020 ruling in favor of VIP cited a 1989 decision by the New York-based 2nd U.S. Circuit Court of Appeals in a case brought by Hollywood legend Ginger Rogers (NYSE:). The actress unsuccessfully sued to block the release of the 1986 film “Ginger and Fred” from director Federico Fellini that referred to her famed dance partnership…
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