WASHINGTON (AP) — Faced with a choice between a shot from Jack Daniel’s and a set of «poop-themed» dog toys that resemble the company’s whiskey bottles, Supreme Court justices on Wednesday appeared to find failures on both sides when weighing up a signature fight between the two. .
The judges, taking a break of sorts from some of the biggest issues before them in cases about race, voting and LGBTQ rights, heard lively oral arguments on whether toys made by VIP Products LLC violate trademark law.
There seemed to be some agreement in court that an appeals court decision in VIP’s favor was wrongly ruled, but it’s not yet clear if the judges make a sweeping ruling that will have a broader impact on trademark law.
Judge Elena Kagan suggested that the court need not make a ruling that calls into question the protections for the expressive use of a trademark in areas such as photography, film or video games.
That’s partly because Kagan didn’t seem sure why the dog toy should be defined as a humorous parody.
“What is the parody here? Maybe I just don’t have a sense of humor,” she said.
VIP says its products, including the whiskey bottle-shaped «Bad Spaniels» toy, are obvious parodies and therefore should be protected as free speech under the First Amendment.
The toy in question has a neck tag that reads «Old No. 2» in reference to the «Old No. 7» tag on Jack Daniel’s bottles. It also says «Old No. 2 on your Tennessee Carpet» on the body in reference to the primary «Old No. 7 Tennessee Sour Mash Whiskey» label that appears on whiskey bottles.
Describing the offending products as «poop-themed dog toys,» the whiskey maker counters that there is a likelihood of confusion, meaning the product violates trademark law.
The argument included references to several colorful hypothetical products as the judges investigated the issue, including a T-shirt featuring the animal logo of a major political party with the slogan «time to sober up America» and another T-shirt that raises awareness. on illegal diamond trafficking with reference to the De Beers diamond company.
Judge Samuel Alito was among those who raised questions about the ramifications of a sweeping ruling in favor of Jack Daniel’s.
«I am concerned about the First Amendment implications of his position,» Alito told company attorney Lisa Blatt.
Alito also asked if anyone would mistake the dog toy for an official Jack Daniel’s product.
«Could any reasonable person think that Jack Daniel’s had approved this use of the mark?» he asked.
«You think the CEO is going to say that’s a great idea, are we going to produce that?» she added.
The court could adopt the argument put forward by the Biden administration and send the dispute back to lower courts for further analysis on the question of whether the parodic nature of the product means that VIP did not violate trademark law.
The US Court of Appeals for the Ninth Circuit in 2020 ruled in favor of VIP Products, saying its toys are protected by the First Amendment, prompting Jack Daniel’s to seek further review from the Supreme Court.
Several companies, including Nike Inc., Campbell Soup Co. and American Apparel, filed briefs supporting Jack Daniel’s, saying the appeals court’s interpretation of the law threatened trademark protections that protect the value of goods. iconic brands.
Free speech advocates, including the Electronic Frontier Foundation, filed reports backing VIP, citing the importance of people being able to comment on and make fun of famous brands.