If you’ve been looking for a gift for your dog loving friends and loved ones, you may have stumbled across some toys that look oddly similar to famous brands of wines and spirits. We recently included them in our own 2022 gift guide. There are pet toys that resemble everything from champagne to beer to tequila, all lovingly recreated in plush, squeaky form. There’s just one problem: none of the companies being mimicked seem to have actually signed off on these toys using the iconic shapes of their bottles and branding. And now Jack Daniel’s latest lawsuit against one such company is about to be heard by the US Supreme Court.
Jack Daniel’s is no stranger to legal actions against those who seem to be infringing on their trademark style. However, they rarely seem to be on the winning side.
Ezra Brooks is one shining example, in which a distillery set out to copy the iconic bottle of Jack as closely as legally possible and found themselves on the receiving end of a lawsuit in the 1960’s. The court eventually decided that there was enough distinction between the two brands and dismissed the lawsuit, allowing Ezra Brooks to continue bottling and selling their similar (but legally distinct) brand of whiskey.
In this specific case, though, Mighty Jack might have a bit more meat on the bones of their argument.
We discussed dog toys as an option you might want to consider in our gift guide this year, and even specifically noted in that article that there was a court case from Jack Daniel’s against these toys which had recently been fought and won by the dog toy maker.
In that court case, Jack Daniel’s claimed that the dog toy had copied Jack’s iconic bottle design, label style, and general appearance without consent from the company. It further argued that the poop-related puns used on the toy would confuse consumers who might think that Jack Daniel’s had endorsed the crude humor, which in turn would tarnish the brand.
The manufacturer of the dog toy, VIP Products, argues in response that the bottle doesn’t bear Jack Daniel’s name and is instead a parody product protected under the First Amendment.
At first, the district court determined that it was in fact copyright infringement. But then the 9th Circuit Court of Appeals ruled that it was protected speech because it was, as VIP Products argued, a humorous parody. It seems that almost two years later that same case has finally made it through a series of appeals all the way to the Supreme Court, which has just accepted it on the docket to be heard in the coming year.
While this might seem like small potatoes at first, there’s actually quite the large potential impact from the outcome. Parody toys and items such as this one are everywhere on the internet, including the Clase Azul look alike dog toy that I got for my own pupper, as seen above. And it’s not just for liquor related toys, either — Campbell’s Soup has also signed on to the lawsuit and argued that rampant use of their trademark can design is impacting their brand.
Parody has traditionally been a valid mechanism for skirting copyright laws, something that folks like “Weird Al” Yankovic have relied upon for their entire careers. The idea is that the parody is “transformative”: they have taken the original work, altered it using their own skills and expertise, and created a completely new work as a result.
The question that these brands are asking the court to decide is whether that protection extends to a product where parody seems to be a secondary concern. These items are selling because of the brands they are apeing, not because of the witty poop based humor of the altered labels. They seem to be asking the court whether the fact that someone finds this funny is enough to shield them from copyright and trademark infringement claims, which is something on which the lower courts could not seem to agree.
For the time being, the specific Bad Spaniels bottle in question seems to have disappeared from sale — it is out of stock on the manufacturer’s website, and no longer appears on their Amazon.com listing either. Whether that bottle reappears, or if the company’s entire stock will follow suit in disappearing forever, seems to be in the hands of the Chief Justices now.