NOS News•
The US Supreme Court today heard the case of whiskey maker Jack Daniel’s against a manufacturer of dog toys. The beverage company thinks the dog toy called “Bad Spaniels” is too similar to Jack Daniel’s bottles. Customers could be confused and the manufacturer doesn’t want its drink associated with dog poop.
The case revolves around a dog toy from the Arizona company VIP Products. Since 2014 they have been making the Silly Squeakers line, which means ‘silly squeakers’. That line consists of chew toys that imitate liquor, beer and wine bottles. Heineken is also made fun of with a toy.
It’s not just about the shape of the toys. There are also all kinds of witticisms that you could connect to a brand or product. For example, the Bad Spaniels toy says, among other things, ’43 percent poop’ where the well-known whiskey brand states that the whiskey contains 40 percent alcohol. On the other side of the bottle it says “100 percent smelly.”
The whiskey manufacturer says it likes a joke, but is afraid that customers will think that the company is cooperating with this product as a whiskey producer. In addition, they do not want to be associated with poop.
‘Not confusing’
Jack Daniel’s therefore invokes the Lanham Act, a trademark law in the US. That law prohibits the use of a trademark in a way that is “likely to cause confusion about the origin, sponsorship or endorsement of goods”.
According to the manufacturer of the dog toys, the whiskey maker is trying to use the Lanham Act to “silence even the playful parody of dog toys”. The company says there’s no way anyone would confuse the toys with whiskey.
Precedent setting
The case is under a magnifying glass, because the ruling can set an important precedent. Big companies like Nike, Patagonia and Levi Strauss pushed the court to side with Jack Daniel’s. They want a ruling that makes it virtually impossible to use a trademark without permission, even if it is art or a parody.
The Biden administration has also intervened in this matter. He had previously urged that the case be taken up, with the Justice Department siding with Jack Daniel’s.
A district court initially ruled in favor of Jack Daniel’s, finding that the toy infringed the distiller’s trademark. But an appeals court later sided with VIP Products and invoked the so-called Rogers test. In that Rogers test, the use of trademarks in works of “creative expression” is actually protected.
The Supreme Court ruling is expected in June.
