At the end of 2022, I wrote about the Jack Daniel’s parody toy case against Phoenix-based VIP Company. It has been ongoing for some time now, with both parties arguing their case all the way to the U.S. Supreme Court. 

Well, just a few weeks back, there was an update on the case, and it is worth taking a closer look at what happened.

The Dispute Behind the Trademark and Toy Parody 

For those unfamiliar with the situation, VIP Company produced a parody toy called “Bad Spaniels,” which featured a label reminiscent of the well-known Jack Daniel’s whiskey bottle label. The owners of the Jack Daniel’s trademark took issue with the parody and filed a lawsuit against the Phoenix-based Company-VIP. 

Previously, the U.S. Court of Appeals for the Ninth Circuit issued a ruling that favored VIP after applying the Rogers Test. The so-called Rogers Test stems from a 1989 case between Ginger Rogers and Director Federico Fellini regarding the artistic use of a trademark. The Rogers test allows creators to lawfully use someone else’s trademarks if it has artistic relevance to their creation and does not explicitly mislead consumers about the source of the creation.

The Ninth Circuit Court of Appeals ultimately held that the “Bad Spaniels” label was a protected parody under the First Amendment and therefore did not infringe on Jack Daniel’s trademark rights. Jack Daniel’s appealed the decision to the U.S. Supreme Court. The Justice Department made an appearance in the case and argued that the Rogers test should be discarded in favor of the multi-factor test normally used in trademark infringement cases, that focuses on likelihood of confusion by the consumer as to the source of the product. 

So, where are we now? The Supreme Court heard arguments in the case on March 22, 2023. 

Despite Rounds of Giggles, Justices Taking Case about Poop-themed Dog Toy Seriously

Stories detailing those arguments seem to start from an amused point of view, pointing out fits of giggling in the courtroom as Justice Kagan said she didn’t get the joke the product was supposed to be conveying. Or Justice Thomas laughing as a punny list of VIP’s products was read aloud. At one point, a misunderstanding involving one of Jack Daniel’s attorneys, Justice Alito, and the sale of dog urine also led to laughter.

Despite this, it is clear if you read carefully that the justices understand this case could set a rather large precedent. Several justices sound concerned about Jack Daniel’s position and specific arguments, citing First Amendment implications and fears over hindering artists.

On the flip side, if they side with VIP, the justices will likely be taking away some trademark protections, allowing people to use marks that do not belong to them as long as they do so in a manner intended to be humorous.

However it shakes out, the result of this case is certain to have an impact on cases involving trademark infringement and creative interpretations.