Doggy Doo, Doggy Don’t: A Supreme Court Issue. (No, Really.)

By Michelle L. Visser

When a Bad Spaniel leaves a doggy stain on a famous brand’s proverbial carpet, even the Supreme Court can have fun. Last week, in the case of Jack Daniel’s Properties, Inc. v. VIP Products LLC, the Supreme Court heard arguments from the attorneys representing Jack Daniel’s and VIP Products.  At issue is a dog toy sold under the name Bad Spaniels with poop-themed jokes all over the label in parody of—or trademark infringement of—Jack Daniel’s’s trademarks. 

Jack Daniel’s isn’t the only brand that got its own Silly Squeakers dog toy.  VIP Products sells a line of beverage-themed pet toys, including Mountain Drool, Smella Arpaw, and Heinie Sniffin, among many others.  All of the dog toys resemble the beverage bottles and cans their names call to mind, in terms of shape, color scheme, and label details. 

VIP Products contends that its dog toy is a parody of the Jack Daniel’s whiskey bottle.  Parody is a well-established defense to a claim of copyright infringement.  The copyright laws are intended to foster creativity and to encourage artistic expression.  In the context of creative works and copyright law, parody enjoys strong First Amendment protections.  

A claim of parody in the trademark context, like the “Bad Spaniels” use, faces an uphill battle because the allegedly infringing use of the trademark owner’s trademark, slogan, product design, and the like are in the context of a commercial use.  The trademarks (or parody thereof) are being used in association with the sale of another company’s products.  This is in contrast to noncommercial use of another’s trademark for parody, such as Andy Warhol’s famed painting of the Campbell’s soup cans that included use of the Campbell’s trademark.

Will consumers buy the dog toys because they believe they are made by or endorsed by Jack Daniel’s?  Will they buy the dog toys because they like the humorous take on the Jack Daniel’s label?  Does the Bad Spaniels dog toy harm the Jack Daniel’s brand, or will consumers see it as an obvious funny take on the Jack Daniel’s label? Even if consumers see the obvious joke, would they nonetheless perceive it as affiliated with or sponsored by Jack Daniel’s?

The arguments before the Supreme Court yielded many laughs. Will this translate to a successful defense of parody?  That remains to be seen.

Michelle Visser is a partner of Fishman Stewart, with over 25 years of experience practicing trademark law with other members of the firm’s Trademark Group.  Besides going on adventures with her husband Kent, she loves attending to her two dogs, which were her inspiration for today’s article (photographed below).