SCOTUS Jack Daniel’s case pits trademarks, free speech

Jack Daniel's will argue that the company violated federal trademark law
A lower court determined the toy is protected by the First Amendment
The 1989 ruling involving actress Ginger Rogers is critical in the case

Updated: Mar 22, 2023 / 10:01 AM EDT

(NewsNation) — Jack Daniel’s trademark case which alleges a dog toy is spoofing the brand’s whiskey bottle could redefine how the judiciary applies constitutional free speech to trademark law.

The Supreme Court is set to hear arguments Wednesday on whether VIP Products’ dog toy violates the Jack Daniel’s trademark. Nine justices will use this case to clarify the line between a parody protected by the U.S. Constitution’s First Amendment and a trademark-infringing ripoff, with repercussions extending beyond booze and pet accessories.

VIP Products’ Bad Spaniels toy mimics Jack Daniel’s famous whiskey bottles, but uses dog-themed alterations. For instance, the “Old No.7” emblem on the bottle is “the Old No. 2, on your Tennessee Carpet” on the toy. Alcohol descriptions on the fake bottle include “43% Poo by Vol.” and “100% Smelly.”

While a lower court determined that the toy is protected by the First Amendment, and is intended as a joke, Jack Daniel’s is seeking to overturn this decision, Insider reported.

“It absolutely is a case of trademark infringement,” Robert Patillo, an attorney and political strategist who analyzed the case, told NewsNation.

In 2020, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in favor of VIP, citing a 1989 decision by the New York-based 2nd U.S. Circuit Court of Appeals in a case brought by Hollywood legend Ginger Rogers. The actress unsuccessfully sued to block the release of the 1986 film “Ginger and Fred” by director Federico Fellini that referred to her famed dance partnership with actor Fred Astaire.

That precedent lets artists use trademarks if they have artistic relevance to a work and would not explicitly mislead consumers into thinking the trademark owner endorsed it.

“I think that the district court’s ruling will indeed be upheld by the Supreme Court because these brands spend hundreds of millions, if not billions, of dollars to establish a brand image. They established a branding, they put money into focus groups, in order for people to have a certain association with their product when they see the branding around it,” Patillo said.

The Supreme Court’s ruling on the case is due by the end of June.

Reuters contributed to this story.