‘Poop-themed dog toys’ shaped like whiskey bottles face Supreme Court trademark showdown

WASHINGTON — The Supreme Court on Wednesday will debate whether Jack Daniel’s has to grin and bear it over humorous dog “poop-themed” toys that bear a resemblance to its iconic whiskey bottles.

The justices, taking a break of sorts from some of the weightier issues before them on cases about race, voting and LGBTQ rights, are hearing oral arguments on whether the toys made by VIP Products LLC violate trademark law.

VIP says its products, including the “Bad Spaniels” toy shaped like a whiskey bottle, are obvious parodies and should therefore be protected as free speech under the First Amendment.

The toy in question has a label on its neck saying “Old No. 2” in reference to the “Old No. 7” label on Jack Daniel’s bottles. It also says “Old No. 2 on your Tennessee Carpet” on the body in reference to the “Old No. 7 Tennessee Sour Mash Whiskey” main label featured on the whiskey bottles.

The whiskey maker, describing the offending products as “poop-themed dog toys,” counters that there is a likelihood of confusion, meaning the product violates trademark law.

“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 company’s lawyer, Lisa Blatt, wrote in court papers.

The problem, she added, is that VIP “sells products mimicking Jack Daniel’s iconic marks and trade dress that mislead consumers, profit from Jack Daniel’s hard-earned goodwill, and associate Jack Daniel’s whiskey with excrement.”

VIP’s lawyer, Bennett Cooper, wrote in court papers that Jack Daniel’s, which is owned by major wine and spirits producer Brown-Forman, is attempt to stifle free speech by “weaponizing” trademark law.

“The Bad Spaniels Silly Squeaker toy is indisputably a good-faith (and successful) parody,” Cooper wrote. “It involves a pretend trademark and pretend trade dress on a pretend label on a pretend bottle with pretend contents, when the real product is a parody embodied in a solid-vinyl dog toy with a squeaker.”

The 9th U.S. Circuit Court of Appeals in 2020 ruled in favor of VIP Products, saying that its toys are protected under the First Amendment, which prompted Jack Daniel’s to seek further review from the Supreme Court.

Various companies, including Nike Inc., Campbell Soup Co. and American Apparel, filed briefs backing Jack Daniel’s, saying the appeals court’s interpretation of the law threatened trademark protections that shield the value of iconic brands. The Biden administration also supports the whiskey maker.

Free speech advocates, including the Electronic Frontier Foundation, filed briefs backing VIP, citing the importance of people being able to comment on and mock famous brands.