Parody, animal poop and product protection are tackled before the US Supreme Court in a humorous take on a serious issue: when spoofs of well-known trademarks go too far under federal law.
Judges will hear oral arguments Wednesday in an appeal from distiller Jack Daniel’s, who is suing to stop an Arizona company from selling plastic dog toys that resemble its iconic whiskey labels and bottles.
It is the latest high-profile intellectual property rights case before the Supreme Court. A ruling expected by June could clarify the limits of the First Amendment in such trademark infringement disputes.
It’s about the “Silly Squeakers” line of dog toys, some of which mimic well-known brands.
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The US Supreme Court will hold hearings with Jack Daniel’s. (Valerie Plesch/Bloomberg via Getty Images/File)
Phoenix-based VIP Products markets dozens of novelty pet products, including the Bad Spaniels 18-inch vinyl toy in the shape of a liquor bottle, which is advertised on its website as “Silly and Funny for Everyone!”
The high-end whiskey maker branded the toy a “poo-themed” in its speech and says the spoof product is damaging its valuable brand by confusing customers.
The chew toy is labeled “The Old No. 2 on Your Tennessee Carpet,” a nod to the phrase “Old No. 7 brands” by Jack Daniel. And while the Jack Daniel’s bottle says it’s 40% alcohol by volume, the toy’s label playfully states it’s “43% Poo by Vol.” and “100% smelly”.
According to VIP, the packaging makes it clear that “this product is not affiliated with the Jack Daniel Distillery”.
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Jack Daniel’s will argue before the Supreme Court. (Igor Golovniov/SOPA Images/LightRocket via Getty Images/File)
LEGAL STAND UP
In judicial humor, intellectual property experts and legal bloggers have playfully viewed the case online, wondering if the Supreme Court will “ravage” its trademark precedents in a “spirited debate”; whether his decision will “bark and not bite.”
Even the lawyers on both sides have tried a light-hearted approach in their briefs with the Supreme Court.
“Jack Daniel’s loves dogs and appreciates a good joke just as much as anyone. But Jack Daniel’s loves its customers even more and doesn’t want them to get confused or associate its fine whiskey with dog poop,” the company’s attorneys wrote to the court .
If their appeal fails, they warned that “anyone could use a famous brand to sell sex toys, drinking games or marijuana bongs while misleading customers and destroying billions of dollars in company value – all in the name of fun.” Humor doesn’t transform it [federal law] to a brand that is free for all.”
Levi Strauss, Nike and the Campbell Soup Company are among those filing amicus briefs in support of Jack Daniel’s.
But the pet products maker replies, “It’s ironic that America’s leading whiskey distiller has no sense of humor and doesn’t recognize when he – and 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 the tradition of playful parody spanning half a century from Topps’ Wacky Packages trading cards to ‘Weird Al’ Yankovic, VIP has released a chewable dog toy. VIP has never sold whiskey or other edibles, nor has it used ‘Jack Daniel’s’ in any way (humorous or not). It mimicked just enough of the iconic bottle that people would get the joke.
In an unusual move, VIP asked the court for permission to present 10 of his actual “Bad Spaniels” toys to the judges for their personal examination, even encouraging them to “squeak” them for effect.
Various advocates of free speech and artistic expression have filed legal briefs to support VIP Products, some arguing that “cultural signifiers” used in movie launches, “fanzine” tributes, and political blogs would be threatened if protections would be restricted by the law.
A federal appeals court in San Francisco ruled in favor of VIP, concluding that “the Bad Spaniel dog toy is an expressive work that is eligible for protection under the First Amendment.”
The Justice Department has suggested that the judges make a decision at this stage, remanding the case to the lower courts to resolve some key legal issues.
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The Supreme Court will hear its second high-profile intellectual property case of this term. (Kent Nishimura/Los Angeles Times via Getty Images)
INTELLECTUAL PROPERTY PROSECUTIONS
This is the second high-profile intellectual property case the Supreme Court has dealt with using the term.
In October, judges debated a fair use dispute over an image of the late music superstar Prince by the equally famous late artist Andy Warhol.
Photographer Lynn Goldsmith took an iconic photograph of the singer in 1981, which Warhol later used to create a series of silkscreen images illustrating magazine profiles.
In this case, the question is whether a work of art is transformative if it conveys a different meaning or message than its source material, or whether courts cannot consider meaning if it is “recognizable from” its source material.
A decision on this case is due in the coming months.
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The Supreme Court deals with cases that could affect freedom of expression. (Universal History Archive/Universal Images Group via Getty Images/File)
In both the Warhol and Whiskey cases, the Supreme Court is asked to conduct an admittedly subjective inquiry—precisely when derivative designs cross a line of copyright or trademark infringement, even when dealing with mundane, catalogued humor.
Under the “fair use” doctrine, a copyrighted work or trademark can be appropriated under certain conditions – a legal standard designed to encourage further creativity and freedom of expression. Such “transformative” works can be used in commentary, criticism, and commercial parody.
But under the key federal law on trademark infringement — known as the Lanham Act — prosecutors typically have to prove, among other things, that the infringing work or trademark “explicitly misleads” or confuses consumers.
This standard has long been debated in court, and here the judges are being asked to clarify the boundaries in the digital age, where artificial intelligence and computer technology are making the transformation of art and brands easier and more ubiquitous.
As part of the “Rogers test,” used by federal courts over the years, judges are asked to weigh the “right to protection.” [a] famous names and the right of others to express themselves freely in their own artistic work.”
It was named after the late actress Ginger Rogers, who lost her lawsuit over two Italian cabaret artists starring in the 1986 Fellini film Ginger & Fred. Rogers claimed the film infringed on her trademark rights, but an appeals court found that expressive use of trademarks deserved heightened freedom of speech protections.
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Jack Daniel’s says in a Supreme Court appeal that “poop-themed” dog toys are ruining its brand. (Stephen Lovekin/Getty Images for New York Magazine/Files)
HANDS-FREE EFFECTS
What the court decides could have far-reaching implications beyond commercial products and into the current conflicting political discourse, with satirical sites like The Babylon Bee and TV comedy shows like Saturday Night Live embracing elected leaders, ideological movements and celebrity and skewer corporate culture in general.
These include the recent “culture jamming” phenomenon, which the dictionary defines as “a form of political and social activism” that uses fake advertising, fake news, imitations of company logos and product labels, computer hacking, etc. to attract attention while simultaneously undermining it the power of the media, governments and big corporations.”
Well-known company logos and symbols are typically altered in satirical or ironic ways, sometimes referred to as “guerrilla communication” because it is often bottom-up, anonymous in origin, and used in flash mobs and graffiti.
Even the nine judges could indirectly expand or limit parodies of themselves.
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Case in point: The court last month dismissed a separate appeal by an Ohio man who created a Facebook page to poke fun at his local police department. He wanted to sue after being arrested and initially charged with violating a state law that makes it illegal to “disrupt” or “interrupt” police functions.
The website Onion submitted an amicus letter to argue about the societal and cultural benefits of satire in political criticism — and put it in a roaring, tongue-in-cheek manner.
Addressing the judges directly, the satirical News site was blunt: “The Onion knows the federal judiciary is completely staffed with Latin American idiots.”
The current case is Jack Daniel’s Properties v VIP Products LLC (22-148).
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