'Poop

Aug 17, 2023

WASHINGTON — Facing a choice between a shot of Jack Daniel's and a chaser of "poop-themed" dog toys that resemble the company's whiskey bottles, Supreme Court justices seemed to find fault on both sides Wednesday as they weighed a trademark fight between the two.

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

There appeared to be some agreement that an appeals court decision in favor of VIP was incorrectly decided, but whether the justices issue a broad ruling that would have a wider impact on trademark law remains unclear.

Justice Elena Kagan suggested the court doesn't need to make a pronouncement that would cast into doubt protections for the expressive use of a trademark in areas like photography, film or video games.

That's in part because Kagan seemed unsure why the dog toy should even be defined as a humorous parody.

"What is the parody here? Maybe I just have no sense of humor," she said.

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.

A label on the toy's neck says "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.

The argument featured references to various colorful hypothetical products as the justices probed the issue, including a T-shirt showing the animal logo of one of the major political parties with the slogan "time to sober up America" and another T-shirt raising awareness of illegal trafficking of diamonds by referring to the diamond company De Beers.

Justice Samuel Alito was among those who raised questions about the ramifications of a broad ruling in favor of Jack Daniel's.

"I'm concerned about the First Amendment implications of your position," Alito told the company's lawyer, Lisa Blatt.

He also asked whether anyone would confuse the dog toy for an official Jack Daniel's product.

"Could any reasonable person think that Jack Daniel's had approved this use of the mark?" he asked.

"Do you think the CEO is going to say that's a great idea, we're going to produce that thing?" he added.

The court could adopt the Biden administration's argument and return the dispute to lower courts for further analysis of the question of whether the parodic nature of the product means VIP didn't violate trademark law.

The 9th U.S. Circuit Court of Appeals in 2020 ruled in favor of VIP Products, saying 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.

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.

Lawrence Hurley covers the Supreme Court for NBC News.