WASHINGTON — (AP) — The company that makes Jack Daniel’s is howling furiously over a squeaky dog toy that parodies the whiskey’s signature bottle. Now the liquor company is barking at the door of the Supreme Court.
Jack Daniel’s has asked the judiciary to hear its case against the maker of the plastic toy Bad Spaniels. The High Court could say on Monday whether the judges agree. A slew of big companies, from the makers of Campbell Soup to outdoor brand Patagonia to jeans maker Levi Strauss, have asked judges to take on what they believe is an important trademark law case.
The toy that drives Jack Daniel’s so damn crazy mimics the square shape of its whiskey bottle, as well as the black-and-white label and amber liquor, and adds what it calls “poop humor.” While on the original bottle the words “Old No. 7 Brand” and “Tennessee Sour Mash Whiskey”, the parody announces: “The Old No. 2 on Your Tennessee Carpet. Instead of the original noting that it’s 40% alcohol by volume, the parody says it’s “43% Poo by Vol.” and “100% Smelly”.
On the back of the toy, which retails for around $13 to $20, reads in small type, “This product is not affiliated with the Jack Daniel Distillery.”
The toy maker says Jack Daniel’s doesn’t take a joke. “It is ironic that America’s leading whiskey distiller has no sense of humor and fails to recognize when he – and everyone else – has had enough,” Arizona lawyers for VIP Products wrote in the High Court. They told the judges that Jack Daniel’s has “waged war” on the company for having “the audacity to produce a pun-filled parody” of its bottle.
But Jack Daniel’s lead attorney, Lisa Blatt, made no bones about the company’s position in her filing.
“Of course everyone likes a good joke. But VIP’s for-profit ‘joke’ confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill,” she wrote for the Louisville, Kentucky-based Brown-Forman Corp., Jack Daniel’s parent company.
Blatt wrote that a lower court decision offers “near blanket protection” for humorous trademark infringement. And she said it had “far-reaching and dangerous implications,” pointing to children who were hospitalized after eating marijuana-infused products that mimicked candy wrappers.
If VIP Products is allowed to confuse consumers with dog toys, “other funny violators can do the same with juice boxes or marijuana-infused candy,” Blatt wrote.
The toy is part of a line of VIP products called Silly Squeakers that mimic liquor, beer, wine and soda bottles. These include Mountain Drool parodying Mountain Dew and Heini Sniff’n parodying Heineken. In 2008, a court banned the company from selling its Budweiser spoof ButtWiper.
After the company started selling its Bad Spaniels toy in 2014, Jack Daniel’s asked the company to stop doing so, but VIP went to court to be allowed to continue selling its product. Jack Daniel’s won the first round in court but lost an appeal. The case reached the Supreme Court at an earlier stage, but the judges didn’t bite.
Bad Spaniels isn’t the only parody puppy toy to draw the wrath of the brand it’s imitating. Luxury bag maker Louis Vuitton is suing the makers of Chewy Vuiton over their plush dog toy. In 2007, a federal appeals court sided with Nevada chew toy maker Haute Diggity Dog. Louis Vuitton did not appeal to the Supreme Court.
The case is Jack Daniel’s Properties Inc. v VIP Products LLC, 22-148.
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