Lawyers for Jack Daniel’s responded that “the test for this court’s review is not Armageddon.” The Bad Spaniels toy, they wrote, “harms Jack Daniel’s brand, including by associating whiskey with excrement and toys that appeal to children.”
Several trade associations for producers and importers of alcoholic beverages told the justices in a brief supporting Jack Daniel’s that the appeals court’s ruling had undermined their efforts to promote responsible drinking.
“Indeed,” the brief said, “the Ninth Circuit’s rule would appear to protect infringing activity that takes the form of jokes about underage drinking, excessive consumption or drunk driving. From children’s toys to drinking game kits to automobile accessories, those making infringing products need only employ humor to escape liability for trademark infringement.”
Lawyers for VIP Products called that idea far-fetched.
“VIP sells a dog toy called ‘Bad Spaniels Silly Squeaker’ with a picture of a dog and no reference to alcohol, and the only people who would understand what was being parodied are people already familiar with whiskey,” the company’s brief said. “No one — not a child, not a dog — is going to be harmed by VIP’s parody.”
Lawyers for Jack Daniel’s said that response was flippant.
“Children need not drink whiskey to know that they enjoy playing with dog toys using Jack Daniel’s marks,” they wrote. “When they see a real Jack Daniel’s bottle, they might be more inclined to consume its contents.”
The American Intellectual Property Law Association, in a brief urging the court to grant review in the case, proposed a middle ground. The First Amendment has a role to play in trademark infringement suits, the group’s lawyers wrote, but only if they involve artistic works. Chew toys are utilitarian commercial products, their brief said, and do not qualify.
More on the U.S. Supreme Court
The Supreme Court is likely to hear arguments in the case, Jack Daniel’s Properties v. VIP Products, No. 22-148, in March and issue a decision by June.
