Supreme Court hears arguments over whiskey bottles, dog toys, pornography and poop

A Supreme Court debate Wednesday over parody and popular commercial brands was dominated by talk of whiskey bottles, dog toys, pornography and poop.

For nearly two hours, the judges wrestled in a laugh-punctuated argument with the intersection of free speech and trademark protection in a case pitting a humorous dog toy maker against American whiskey producer Jack Daniel’s.

The case, Jack Daniel’s Properties Inc., v. VIP Products, revolves around a chew toy that resembles a bottle of Jack Daniel’s whiskey, but is falsified as “Bad Spaniels” with the suggestion that the contents are pet waste.

“This case involves a dog toy that copies Jack Daniel’s trademark and trade dress and associates its whiskey with dog feces,” the whiskey maker’s lawyer Lisa Blatt told the court on Wednesday.

The beverage company claims the toy’s design is causing confusion and weakening the brand’s quality. VIP Products insists the spoof is clear and protected by the First Amendment.

“They’re complaining about the speech, the parody, the comparison to dog shit and a bad spaniel, not the mark,” VIP Products attorney Bennett Cooper said Wednesday. “Parodies of non-competing goods like Bad Spaniels are unlikely to cause confusion.”

A district court sided with Jack Daniel’s, but an appeals court reversed and upheld the toy. The judges considered what legal test should decide when a trademark was infringed and whether VIP Products’ toys had done so.

“Could any sane person think that Jack Daniel’s had approved this use of the mark?” Judge Samuel Alito asked Blatt, representing the whiskey maker.

“Absolutely,” Blatt replied. “That’s why we won [in the district court].”

“I’m concerned about the First Amendment implications of your position,” Alito said.

Blatt, supported by dozens of American brands such as American Apparel, Campbell Soup Company and Nike, warned that allowing imitations such as “Bad Spaniels” would open the floodgates for harmful trademark infringement – under the justification of “parody” – in pornography too.

Blatt told the judges that trademark owners could be subjected to “something close to forced speech if their trademark has been used in adult films and adult toys and sex toys, and people benefit from that.”

She lifted the 1970s adult film “Debbie Does Dallas,” which an appeals court found in a separate case infringed on the trademark of the Dallas Cowboys Cheerleaders.

Meanwhile, VIP Products argued that dog toys are a “non-commercial” form of protected speech — a trademark parody, said Cooper, one of their lawyers, because they don’t explicitly say “Jack Daniel’s.”

“There’s no question that Jack Daniel’s takes itself very seriously,” Cooper joked.

Some in court seemed unconvinced.

“Maybe I just don’t have a sense of humor – but what’s the parody?” Judge Elena Kagan asked. She further suggested that the chew toy is just a “regular commercial product” that takes advantage of a whiskey brand’s likeness.

“You’re making fun of a lot of brands: Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Do all these companies take themselves too seriously?” she asked dryly.

Chief Justice John Roberts led the morning’s arguments, but asked no questions himself. Judges Brett Kavanaugh and Amy Coney Barrett did not speak at all throughout the proceedings.

There was no clear consensus among the judges as to which company should prevail or whether the case should be returned to a lower court for further consideration.

The court is expected to rule at the end of June.