The term “dog poop” echoed multiple times on Wednesday in the very venerable United States Supreme Court, whose justices seemed stunned by the object presented to their wisdom: a dog toy that reroutes the visual codes of famed whiskey brand Jack Daniel’s.
This chew toy, christened “Bad Spaniels” (naughty spaniel), is distributed by the company VIP Products. It has the signature shape of the distillery’s square bottles with black labels, complete with scatological quips.
Where Tennessee whiskey has an ABV of 40%, Bad Spaniels are made – reportedly – from “43%” dog poop and risk ending up on “Tennessee carpets.”
The bourbon maker complained about an image attack and sued the VIP company in the name of trademark protection. After several twists and turns, the Supreme Court decided to include it.
The case raises “important questions for the First Amendment” to the constitution, which guarantees freedom of expression, Judge Samuel Alito said during the hearing.
Indeed, the nine wise men must say whether the use of a mark for humorous purposes can be considered to fall under this right to freedom of expression and therefore derogate from intellectual property rules.
VIP, which also sells counterfeit Canine Cola cans, hides behind the Parody Right, which allows copyright infringement in the cultural sphere.
“We poke fun at brands that take themselves too seriously,” “that think of themselves as cultural icons,” his solicitor, Bennett Cooper, told the High Court.
Judge Elena Kagan seemed unconvinced. “Maybe I don’t have a sense of humor, but how is this a parody?” she asked. “They’re just saying that big companies, by definition, take themselves too seriously…”
For Jack Daniel’s attorney, Lisa Blatt, the question isn’t whether she understands the parody or whether it’s funny. However, “it must be clear that the company with the registered trademark did not make the joke itself,” she pleaded.
However, in her opinion, there is a risk of “confusion” among customers in this case.
This time it was Samuel Alito who showed his skepticism. “Do you really think any sane person would think Jack Daniel’s approved this product? by pretending it was filled with urine and ‘the CEO would reply, ‘That’s a great idea!'”
“You studied law, you are intelligent, analytical…” replied Me Lisa Blatt. “I went to law school and didn’t study much law,” the judge replied. “But I had a dog, I know a bit about dogs…”
The Supreme Court must make its decision before June 30.