“The Old No. 2, on your Tennessee Carpet.” “43% Poo By Vol.” “100% Smelly.”
Those are just a few of the quotes employed by Phoenix-based business VIP for their “Bad Spaniels” dog toy. They are meant to evoke and parody Jack Daniel’s famous “Old No. 7” label of whiskey by using similar language to describe a dog that behaves badly.
If you saw that language on a dog toy, would you think that it came from Jack Daniel’s? Could it possibly cause brand confusion?
Jack Daniel’s certainly thinks so. In fact, they have been fighting for VIP to stop making the toy since 2014, arguing that this so-called trademark parody infringes on their rights to the mark.
How has the case gone?
Trademark Parody for the Win… at Least So Far
After an initial ruling in their favor, Jack Daniel’s has suffered a string of losses in what has become a long and winding case.
In 2020, the San Francisco-based 9th U.S. Circuit Court of Appeals overturned the earlier ruling, arguing that the toy deserved First Amendment protections due to its “humorous message.” In 2021, the Supreme Court refused Jack Daniel’s request to reconsider that ruling.
But Jack Daniel’s would not give up. This past August, they filed a new appeal – this time of a 9th Circuit decision.
Why is Jack Daniel’s pushing back so hard on this decision?
Is It Okay to “Tarnish” a Brand So Long As It Is Funny?
The argument that Jack Daniel’s is trying to make: allowing this type of trademark parody makes it “virtually impossible to stop misleading or tarnishing use of a mark whenever a copycat deploys ‘humor.’”
Whether or not such a product actually “tarnishes” the brand is debatable, but Jack Daniel’s is certainly not alone in making this argument. In fact, numerous companies filed briefs supporting the appeal, such as Levi Strauss & Co., Campbell Soup Co., and Patagonia, Inc.
Clearly, this is an issue that big businesses are worried about. Perhaps this is why the Supreme Court finally agreed to listen to the appeal from Jack Daniel’s.
Supreme Court Agrees to Hear the Case… and Likely Set a New National Standard
Will Jack Daniel’s ultimately prevail… or come to regret their decision to keep pushing for the appeal? Only time will tell, but Bennett Cooper, a lawyer for VIP, does not seem to be overly concerned.
Cooper calls it “a good test case to create a national standard” and hopes the ruling will help to reconcile trademark law and the free speech values we hold so dear.
We will definitely be paying attention to the outcome, because this one could have big implications for major brands.