Jack Daniels vs. Bad Spaniels

Many readers of Common Sense will recognize the image on the left, but the image on the right, perhaps not so much.
“Bad Spaniels” is a dog chew toy, marketed by VIP Products, the country’s second-largest dog toy company. VIP designed the Bad Spaniels Silly Squeaker as a parody of Jack Daniel’s black-label whiskey.
“Jack Daniel’s” becomes “Bad Spaniels”; “Old No. 7” becomes “Old No. 2”; and “Tennessee Whiskey” becomes “Tennessee Carpet.” References to alcohol content are turned into “43% POO BY VOL.” and “100% SMELLY.” “Bad Spaniels” approximates the shape and size of a Jack Daniel’s black-label whiskey bottle, but features the picture of a wide-eyed spaniel and when chewed, squeaks.
Perhaps this sounds like clever marketing but in fact, Jack Daniels did not consider it a joke, and the on-going legal dispute between the two companies is pending before the Supreme Court as Jack Daniel’s Properties, Inc. v. VIP Products LLC.
Full briefing on the merits of the case is underway and it is scheduled for oral argument before the Court on March 22. Other well-known brands — Levi Strauss, Patagonia, Campbell Soup, Nike, Campari — have supported Jack Daniels through amicus briefs.
The dispute began when Jack Daniels went to court to prevent VIP’s sale of Bad Spaniels. Jack Daniel’s claims that the toy confuses consumers and dilutes the company’s trademarks by associating them with dog poop and products that appeal to children.
As recently asserted in its brief before the Supreme Court, “Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop.”
The trial court agreed with Jack Daniel’s trademark claims, but the Ninth Circuit Court of Appeals reversed, holding that VIP’s “humorous” dog toy was an “expressive work” warranting heightened First Amendment protection from infringement liability. Jack Daniel’s then sought review by the Supreme Court, claiming that if such an exception from general trademark law prevails, trademark law will become “all bark and no bite.”
A decision is expected by the end of June.
John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
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