A Supreme Court debate Wednesday on parody and popular commercial brands was dominated by talk of whiskey bottles, dog toys, pornography and poop.
For nearly two hours, in an argument punctuated by laughter, the justices grappled with the intersection of free speech and protection for trademarks in a case pitting a funny dog toy maker against American whiskey producer Jack Daniel.
The case, Jack Daniel’s Properties Inc., v. VIP Products, centered on a chew toy that resembled a bottle of Jack Daniel’s whiskey but was spoofed as “Bad Spaniels” with the suggestion that its contents were pet excrement.
MORE: Supreme Court hears case between Jack Daniel’s and dog toy maker
“This case involves a toy dog copying Jack Daniel’s trademark and trade dress and associating its whiskey with dog poop,” the whiskey maker’s attorney Lisa Blatt told the court Wednesday.
The liquor company says the toy’s design causes confusion and dilutes the quality of its brand. VIP Products contends that the spoof is obvious and protected by the First Amendment.
“They’re complaining about the speech, the parody, the comparison to dog poop and a Bad Spaniel, not the mark,” VIP Products attorney Bennett Cooper said Wednesday. “Parodies of non-competitive products such as Bad Spaniels are unlikely to cause confusion.”
A district court sided with Jack Daniel’s but an appeals court reversed, upholding the toy. The justices considered what legal test should be used to decide when a trademark has been infringed and whether a VIP Products toy did so.
“Can any reasonable person think that Jack Daniel’s approved this use of the mark?” Justice Samuel Alito asked Blatt, who represented the whiskey maker.
“Absolutely,” Blatt replied. “That’s why we won [in the district court].”
“I am concerned about the First Amendment implications of your position,” Alito said.
Blatt, who is backed by dozens of US brands such as American Apparel, Campbell Soup Company and Nike, warned that allowing imitations like “Bad Spaniels” would open the door to disastrous trademark infringement — in under the pretext of “parody” — including pornography.
Blatt told the justices that trademark owners could be victims of “something approaching forced speech if their mark is used in porn movies and porn toys and sex toys, and people are earning it.”
He brought up the ’70s pornographic film “Debbie Does Dallas,” which an appeals court in a separate case found infringed the Dallas Cowboys Cheerleaders trademark.
VIP Products, meanwhile, says the dog toy is a “noncommercial” form of protected speech — a distinct parody, said Cooper, one of their lawyers, because it doesn’t explicitly say “Jack Daniel’s.”
“There’s no doubt Jack Daniel’s takes itself seriously,” Cooper said.
Some in the court didn’t seem convinced.
“Maybe I just don’t have a sense of humor — but what’s the parody?” asked Justice Elena Kagan. He suggested that the chew toy was just an “ordinary commercial product” that profited from the likeness of a whiskey brand.
“You make fun of a lot of brands: Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Do all these companies take themselves too seriously?” he asked dryly.
Chief Justice John Roberts led the morning’s arguments but did not ask any questions. Justices Brett Kavanaugh and Amy Coney Barrett did not speak throughout the proceedings.
There was no apparent consensus among the justices on which company should prevail or whether the matter should be sent back to a lower court for further consideration.
The court is expected to issue a decision by the end of June.
Supreme Court hears arguments over whiskey bottles, dog toys, pornography and poo Originally appeared on abcnews.go.com
