This week, the United States Supreme Court added to its oral arguments calendar an intellectual property case between Tennessee whiskey brand Jack Daniels and VIP Products LLC, makers of a line of dog toys called Silly Squeakers, which parody alcohol packaging from brands such as Budweiser, Corona, and Jack Daniels.
Litigation between Jack Daniels and VIP started in September 2014, with both sides seeing wins in the lower courts throughout that time. At issue is where one draws the line between parody and IP infringement in Jack Daniel’s Properties Inc. v. VIP Products LLC. The whiskey brand says VIP’s toy is similar enough to Jack Daniel’s trade dress that it will cause consumer confusion. Meanwhile, VIP Products argues that its “Bad Spaniels” toy is different and unique enough to be protected speech under the First Amendment.
In October 2021, a circuit court in Arizona ruled in favor of VIP Products, stating that Jack Daniels’ claims failed to pass applicable trademark violation tests.
“Here, while VIP heavily imitated JDPI’s trade dress, it also altered nearly every element with its own expressive content. As a result, the Bad Spaniels Toy is more similar to the mashup,” the court’s opinion noted.
Part of Jack Daniels’ motivation is no doubt the nature of the “Bad Spaniels” parody, which makes references to smelly canine feces plopped onto a carpet. Unfortunately for Jack Daniels, so long as the “Bad Spaniels” toy is found to be expressive content, there is little it can do.
