The Supreme Court ruled on Thursday that the First Amendment did not protect a chew toy for dogs resembling a bottle of Jack Daniel’s from a lawsuit claiming trademark infringement.
The toy, the Bad Spaniels Silly Squeaker, has the shape and other distinctive features of a bottle of Jack Daniel’s but with, as an appeals court judge put it, “lighthearted, dog-related alterations.”
The words “Old No. 7 Brand Tennessee Sour Mash Whiskey” on the bottle are replaced on the toy by “the Old No. 2, on your Tennessee carpet.” Where Jack Daniel’s says its product is 40 percent alcohol by volume, Bad Spaniels’ is said to be “43 percent poo.”
A tag attached to the toy says it is “not affiliated with Jack Daniel Distillery.”
Justice Elena Kagan, writing for a unanimous court, seemed amused by the dispute. “This case is about dog toys and whiskey,” she wrote, “two items seldom appearing in the same sentence.”
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She added that the characteristics of the whiskey bottle were familiar to almost everyone.
“A bottle of Jack Daniel’s — no, Jack Daniel’s Old No. 7 Tennessee Sour Mash Whiskey — boasts a fair number of trademarks,” she wrote. “Recall what the bottle looks like (or better yet, retrieve a bottle from wherever you keep liquor; it’s probably there).”
Trademark cases generally turn on whether the public is likely to be confused about a product’s source. In the Bad Spaniels case, a unanimous three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, said the First Amendment required a more demanding test when the challenged product was expressing an idea or point of view.
“The Bad Spaniels dog toy, although surely not the equivalent of the Mona Lisa, is an expressive work” that uses irreverent humor and wordplay to poke fun at Jack Daniel’s, Judge Andrew D. Hurwitz wrote for the panel.
But Justice Kagan said there was no role for “any threshold First Amendment filter” in the case. Rather, she wrote, “the infringement claim here rises or falls on likelihood of confusion.”
That is the classic inquiry in trademark cases. But Justice Kagan, in returning the case to lower courts to analyze it, said the chew toy’s mockery of the liquor bottle had to figure in the analysis, as it was not obvious that consumers would think that Jack Daniel’s was responsible for a toy poking fun at itself.
Justice Samuel A. Alito Jr. made a similar point when the case was argued in March, imagining a pitch meeting with a Jack Daniel’s executive.
“Somebody in Jack Daniel’s comes to the C.E.O. and says: ‘I have a great idea for a product that we’re going to produce. It’s going to be a dog toy, and it’s going to have a label that looks a lot like our label, and it’s going to have a name that looks a lot like our name, Bad Spaniels, and what’s going to be purportedly in this dog toy is dog urine,’” Justice Alito said, suggesting that consumers were unlikely to think the chew toy was produced or endorsed by the distiller.
Justice Kagan echoed the point in her opinion. “Consumers,” she wrote, “are not so likely to think that the maker of a mocked product is itself doing the mocking.” She added, “Self-deprecation is one thing; self-mockery far less ordinary.”
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The toy, the Bad Spaniels Silly Squeaker, has the shape and other distinctive features of a bottle of Jack Daniel’s but with, as an appeals court judge put it, “lighthearted, dog-related alterations.”
The words “Old No. 7 Brand Tennessee Sour Mash Whiskey” on the bottle are replaced on the toy by “the Old No. 2, on your Tennessee carpet.” Where Jack Daniel’s says its product is 40 percent alcohol by volume, Bad Spaniels’ is said to be “43 percent poo.”
A tag attached to the toy says it is “not affiliated with Jack Daniel Distillery.”
Justice Elena Kagan, writing for a unanimous court, seemed amused by the dispute. “This case is about dog toys and whiskey,” she wrote, “two items seldom appearing in the same sentence.”
Story continues below advertisement
Continue reading the main story
She added that the characteristics of the whiskey bottle were familiar to almost everyone.
“A bottle of Jack Daniel’s — no, Jack Daniel’s Old No. 7 Tennessee Sour Mash Whiskey — boasts a fair number of trademarks,” she wrote. “Recall what the bottle looks like (or better yet, retrieve a bottle from wherever you keep liquor; it’s probably there).”
More U.S. Supreme Court Decisions and Developments
- Financial Disclosures: Justices Clarence Thomas and Samuel Alito delayed releasing their annual financial disclosure forms. For Thomas, the delay comes after recent revelations cast scrutiny on his travel, gifts and real estate dealings with a conservative billionaire donor.
- Strike Losses: The Supreme Court ruled that federal labor law did not protect a union from potential liability for damage to an employer that arose during a strike.
- Admissions: A new appeals court case asks whether schools can use race-neutral tools to achieve racial diversity. The justices may use it to answer questions left open in its coming decisions on affirmative action.
Trademark cases generally turn on whether the public is likely to be confused about a product’s source. In the Bad Spaniels case, a unanimous three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, said the First Amendment required a more demanding test when the challenged product was expressing an idea or point of view.
“The Bad Spaniels dog toy, although surely not the equivalent of the Mona Lisa, is an expressive work” that uses irreverent humor and wordplay to poke fun at Jack Daniel’s, Judge Andrew D. Hurwitz wrote for the panel.
But Justice Kagan said there was no role for “any threshold First Amendment filter” in the case. Rather, she wrote, “the infringement claim here rises or falls on likelihood of confusion.”
That is the classic inquiry in trademark cases. But Justice Kagan, in returning the case to lower courts to analyze it, said the chew toy’s mockery of the liquor bottle had to figure in the analysis, as it was not obvious that consumers would think that Jack Daniel’s was responsible for a toy poking fun at itself.
Justice Samuel A. Alito Jr. made a similar point when the case was argued in March, imagining a pitch meeting with a Jack Daniel’s executive.
“Somebody in Jack Daniel’s comes to the C.E.O. and says: ‘I have a great idea for a product that we’re going to produce. It’s going to be a dog toy, and it’s going to have a label that looks a lot like our label, and it’s going to have a name that looks a lot like our name, Bad Spaniels, and what’s going to be purportedly in this dog toy is dog urine,’” Justice Alito said, suggesting that consumers were unlikely to think the chew toy was produced or endorsed by the distiller.
Justice Kagan echoed the point in her opinion. “Consumers,” she wrote, “are not so likely to think that the maker of a mocked product is itself doing the mocking.” She added, “Self-deprecation is one thing; self-mockery far less ordinary.”
Supreme Court Rules Against Dog Toy Resembling Liquor Bottle
The case, a trademark dispute, pitted Jack Daniel’s against Bad Spaniels Silly Squeakers, which looks like the distiller’s distinctive bottle and adds potty humor.
