Parody, pet poo, and product protection will face the U.S. Supreme Court in a humorous take on a serious issue: when parodies of popular trademarks go too far under federal law.
Justices will hear oral arguments Wednesday in an appeal by distiller Jack Daniel’s, which is suing an Arizona company to stop selling plastic dog toys that resemble its iconic whiskey labels and bottles.
This is the latest Supreme Court intellectual property rights case. A ruling expected in June could clarify the First Amendment’s limits on such trademark infringement lawsuits.
At issue is the “Silly Squeakers” line of dog toys, with some mimicking popular brands.
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The US Supreme Court will hear oral arguments with the Jack Daniel’s company. (Valerie Plesch/Bloomberg Getty Images/via File)
Phoenix-based VIP Products markets dozens of innovative products, including an 18-inch “Bad Spaniels” vinyl toy shaped like a liquor bottle, which its website describes as “Silly and Fun For Everyone!”
In its appeal, the high-end whiskey maker refers to the toy as a “poopy thing” and says the parody product damages its valuable brand by confusing customers.
The chew toy features the words “The Old No. 2 on Your Tennessee Carpet,” a play on the Jack Daniel’s phrase “Old No. 7 mark.” And while the Jack Daniel’s bottle shows 40% alcohol by volume, the toy’s label playfully states that it’s “43% Vol by Poo.” and “100% fragrant”.
VIP says its packaging makes it clear “This product is not affiliated with Jack Daniel Distillery.”
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Jack Daniel’s will present oral arguments before the Supreme Court. (Igor Golovniov/SOPA Images/LightRocket via Getty Images/File)
LEGAL STATUS
In what is considered judicial humor, intellectual property experts and legal bloggers have playfully watched the case online, asking whether the high court, in a “spirited debate”, is “ruining” its trademark precedent; whether his judgment will be “no bark and no bite.”
Lawyers on both sides have also tried a light-hearted stance in their filings with the high court.
“Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s loves its customers even more, and doesn’t want to confuse them or associate its fine whiskey with dog shit,” the company’s lawyers wrote to the judge.
If the appeal fails, they warned, “anyone can use a famous brand to sell sex toys, drinking games or marijuana bongs, while deceiving customers and destroying millions of dollars of goodwill, all in the name of having a good time. Humor has not. transformed ( federal law) trademark free for all.”
Levi Strauss, Nike and Campbell Soup Company are among those filing amicus briefs in favor of Jack Daniel’s.
But the pet products company says, “It’s ironic that America’s leading whiskey distiller has no sense of humor and can’t recognize when everyone else has had enough.”
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Jack Daniel’s is involved in an intellectual property lawsuit in the Supreme Court. (Jakub Porzycki/NurPhoto via Getty Images/File)
“In a tradition of playful parody spanning more than half a century from the Topps’ Wacky Packages trading card to ‘Weird Al’ Yankovic, VIP introduced a chewable dog toy. VIP has never sold whiskey or other food, and has never Use ‘Jack Daniel’s.'” In any way (humorous or not). He was just mimicking the iconic bottle so people would get the joke.”
In an unusual move, VIP asked the judge for permission to send 10 of his authentic “Bad Spaniel” toys for the judges to examine in person, even encouraging them to “squeak”.
Many advocates of free speech and artistic expression have brought legal rights to support VIP Products, with some arguing that the “cultural meanings” used in feature films, fanzine tributes and political blogs would be under threat if the law’s protections were limited.
A federal appeals court in San Francisco ruled against VIP, concluding that “the Bad Spaniels dog toy is an expressive work entitled to First Amendment protection.”
The Justice Department has suggested allowing the judges to decide the issues at this stage and sending the case back to lower courts to resolve some important legal issues.
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The Supreme Court will consider the second intellectual property case of this term. (Kent Nishimura/Los Angeles Times via Getty Images)
INTELLECTUAL PROPERTY JACKETS
This is the second intellectual property case the Supreme Court has dealt with this term.
In October, the courts debated a fair use dispute over an image of the late music superstar Prince by famed artist Andy Warhol.
Photographer Lynn Goldsmith took an iconic photograph of the singer in 1981, which Warhol later used to create a series of screenprint images that illustrated magazine profiles.
In that case, the question is whether a work of art is transformative if it conveys a different meaning or message from its source material, or if the meaning is “recognizable” from its source material that the courts cannot consider.
In that case the judgment should be given in the coming months.
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The Supreme Court is examining cases that may affect freedom of expression. (Universal History Archive / Universal Images Group via Getty Images / File)
The Supreme Court in the Warhol and whiskey cases is asked to navigate a subjective inquiry into acceptance when derivative designs cross a line with copyright or trademark infringement, albeit of a slightly scalar humor.
Under the doctrine of “fair use,” a copyrighted work or trademark can be appropriated under certain conditions, a legal standard designed to increase creativity and freedom of expression. Such “transformative” works can be used in commercial commentary, criticism, and parody.
But under the key federal trademark infringement law — known as the Lanham Act — plaintiffs typically must show, among other things, that the offending work or mark “explicitly deceives” or confuses consumers.
This rule has long been debated in the courts, and here the courts are asked to clarify the boundaries of the digital age, when artificial intelligence and computer technology make the transformation of art and brands easier and more widespread.
Under the “Rogers test” used by federal courts over the years, judges are asked to balance “(a) right to protect a famous name against the right of others to express themselves freely in their artistic work.”
It was named after the late actress Ginger Rogers, who lost her lawsuit over Fellini’s 1986 film “Ginger & Fred,” about two Italian cabaret singers. Rogers said the film violated his trademark rights, but an appeals court ruled that expressive use of trademarks deserves greater free speech protection.
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Jack Daniel’s claims “poop-themed” dog toys are tarnishing its brand in a Supreme Court appeal. (Stephen Lovekin/Getty Images for New York Magazine/File)
EFFECTS OF FREE SPEECH
The court’s decision could have far-reaching implications beyond commercial products and into today’s fragile political expression, with satire sites like “The Babylon Bee” and television comedy shows like “Saturday Night Live” skewering elected officials, ideological movements and celebrity and corporate culture. generally.
This includes the recent phenomenon of “culture jamming”, which the dictionary defines as “a form of political and social activism which, through false advertising, fake news, pastiches of company logos and product labels, computer hacking, etc., draws attention and , at the same time, it subverts the power of the media, governments and large corporations.”
Well-known corporate logos and symbols are usually altered in a satirical or ironic way, sometimes referred to as “guerrilla communication” because of their frequent underpinnings, anonymous origins, and use in flash mobs and graffiti.
The nine judges can also indirectly expand or limit parodies of themselves.
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Case in point: A court last month denied an appeal by an Ohio man who created a Facebook page to mock his local police department. He has sought to sue after his arrest and initially accused of violating a state law that makes it illegal to “disrupt” or “disrupt” police functions.
The “Onion” website filed an amicus brief arguing for the social and cultural benefits of satire in political criticism.
Addressing the justices directly, the satirical “news” site was blunt: “The Onion knows the federal judiciary is made up entirely of Latino dorks.”
The current case is Jack Daniel’s Properties v. It is VIP Products LLC (22-148).