The toy features a spaniel and a play on 40% alcohol by volume: “43% poo by volume, 100% smelly.”
The bottle is part of the Silly Squeakers series of dog toys, which was created by VIP Products, the second-largest dog toy producer in the United States.
The idea for the Bad Spaniels spoof came to VIP’s owner, Stephen Sacra, while he was out for dinner and found himself staring towards the back of a bar at the famed Jack Daniel’s bottle.
A prototype design for a new toy was ready within 48 hours, and it is now the company’s best-selling product in major retailers across the country.
According to the lawsuit, Bad Spaniels infringes on Jack Daniel’s brand, confuses consumers, and tarnishes the company’s reputation.
Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop,” said the legal team.
The complaint further read that the Arizona toy maker was benefitting “from Jack Daniel’s hard-earned goodwill” while also confusing consumers by persuading them to “associate Jack Daniel’s whiskey with excrement”.
Former Solicitor General Gregory Garre, representing the U.S. Chamber of Commerce and the National Association of Manufacturers, debates that “giving businesses a free pass to capitalize on hard-earned trademarks … would deeply destabilize an economic system that is rightly the envy of the world.”
In response, VIP’s brief said: “Freedom of speech begins with freedom to mock.”
VIP’s lawyer Bennett Evan Cooper said Jack Daniel’s missed the point: “There is no bottle of dog food being sold. It’s a pretend trademark on a pretendlabel for a pretend bottle full of pretend content. The entire thing is a parody.”
A lower federal court had already decided in favor of VIP Products, which was upheld by the Nine Circuit Court of Appeals, prompting Jack Daniel’s to now seek reconsideration from the Supreme Court.
The company alleges that the lower court erred in concluding that the Bad Spaniels dog toy was a “humorous” and “expressive” work, and therefore free from accusations of trademark infringement by Jack Daniel’s.
If that verdict is upheld, they claim that anyone could use a famous trademark to sell sex toys, drinking games, or marijuana bongs, while deceiving customers and damaging billions of dollars in goodwill – all in the name of fun.
Cooper, VIP’s lawyer, claims that Bad Spaniels toys do not deceive customers. “The source of the confusion here is not that people think that this product comes from Jack Daniel’s, but the misimpression which hopefully we can clarify in this lawsuit, that you need the permission of somebody to parody them,” he says.
This lawsuit involves federal trademark laws and whether and when parody is a protected expression.
