It is fairly uncommon for wine to show up in front of the highest court in the land, and most court battles pit different factions of the industry against each other. But in a new motion filed last month requesting a SCOTUS hearing, petitioner Jack Daniel's Properties Inc. has been joined in legal solidarity with amicus briefs from the Wine Institute, Beer Institute, Brewers Association, American Distilled Spirits Alliance, American Craft Spirits Association, Distilled Spirits Council of the United States (DISCUS), Constellation Brands, Campari and Campbell Soup, which together account for a pretty sizable swath of the liquid foodstuffs world.
At issue: trademark law. Specifically, whether trademark law protects one's brand from being parodied as a novelty dog toy, and even more specifically in the instance when said dog toy is shaped like a squarish liquor bottle bearing a familiar-looking label font that reads, "Bad Spaniels: The Old No. 2 on Your Tennessee Carpet." The parties, bless them, have been fighting this out in increasingly more prominent courts for six years now.
Jack Daniel’s Properties Inc. v. VIP Products LLC is now on the docket for a SCOTUS hearing, if the court decides to take it up. The Arizona-based toy manufacturer some years ago began making a line of punny, booze-themed toys called "Silly Squeakers," but you know who wasn't laughing? The entire beverage alcohol industry, which has taken issue with the almost impressively bold and numerous parody knockoffs of popular drinks brands. Some of the puns land—"Doggie Walker," of course, for Johnnie Walker, "Mountain Drool," simply replacing Dos Equis with "Dos Perros"—while some are not really printable in this publication, and some are kind of a stretch, even by the standards of rubberlike material. Constellation, which owns Corona beer, objected in its brief to the "Cataroma" toy, but stablemate Robert Mondavi Winery (aka … "Grrrobert Slobbery") evidently did not require quite the same level of spirited defense.
The Daniels/Spaniels showdown seemed headed for resolution in 2018, when a district court judge ruled in favor of Gentleman Jack, citing consumer confusion and potential brand damage as reason enough to put VIP Products in the doghouse. "Bad! No!" the judged may or may not have proclaimed. But in March 2020, the Court of Appeals for the Ninth Circuit turned things back around, ruling that the dog toys were protected by the First Amendment and didn’t threaten to dilute the Jack Daniel’s trademark.
So what’s barking now? Last week, the six beverage associations filed their amicus brief backing up JD and urging SCOTUS to overturn the appeal. Courtney Armour, DISCUS’ chief legal officer, made the case to Unfiltered via email. “If allowed to stand, the Ninth Circuit decision opens the door to infringing use of famous alcohol brands,” said Armour, “so long as they inject some form of humor, which could include third parties promoting the irresponsible behavior that we have long fought to keep out of alcohol beverage advertising.”
Today it's dog toys, but Armour argued that the decision provides precedent for other “’humorous’ products” that might encourage irresponsible and illegal drinking; the industry works hard to self-regulate its advertising. A judge was inclined to agree when VIP was previously taken to court in 2008 for its Budweiser parody toy, which had offered an altered moniker to include the word "butt."
VIP, for their part, are happy their victory stands for now. “We are obviously pleased with the Ninth Circuit ruling,” a representative of VIP Products told us via email. “It has always been VIP Products’ position that its good-humored and good-natured Bad Spaniels parody dog toy is an expressive work that invites consumers to both reflect on the humanization of dogs in our lives and to laugh at how large corporations like Jack Daniel’s can take themselves and their brands so seriously.” As another famous pet might put it, "Meow!"
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