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Sunday, Dec 04, 2022

U.S. Supreme Court takes up Jack Daniel's dog toy trademark rumpus

U.S. Supreme Court takes up Jack Daniel's dog toy trademark rumpus

The U.S. Supreme Court on Monday decided to referee a dog fight, agreeing to hear a bid by liquor brand Jack Daniel's to stop a company that sells dog toys from using designs that parody its trademarked Old No. 7 Black Label Tennessee Whiskey bottle.
The justices took up an appeal by Jack Daniel's Properties Inc, owned by Louisville, Kentucky-based Brown-Forman Corp (BFb.N), of a lower court's ruling in the trademark dispute that VIP Products LLC's "Bad Spaniels" toy is an "expressive work" covered by the U.S. Constitution's First Amendment free speech protections.

Phoenix-based VIP's toy mimics the design of the Jack Daniel's bottle with comical dog-themed text alterations, like replacing "Old No. 7" with "the Old No. 2, on your Tennessee Carpet" and alcohol descriptions with "43% Poo By Vol." and "100% Smelly."

After Jack Daniel's sent a cease-and-desist notice, VIP asked an Arizona federal court in 2014 to rule that its toy did not infringe the whiskey company's trademark rights.

The San Francisco-based 9th U.S. Circuit Court of Appeals in 2020 overturned a judge's ruling in favor of Jack Daniel's, finding that VIP's toy was a creative work with a "humorous message" that was entitled to First Amendment protections.

The Supreme Court last year rejected a request by Jack Daniel's to reconsider that ruling. The whiskey maker then filed a new appeal of a related 9th Circuit decision in August.

Jack Daniel's told the high court that the decision made it "virtually impossible to stop misleading or tarnishing use of a mark whenever a copycat deploys 'humor.'"

Companies including Campbell Soup Co (CPB.N), Levi Strauss & Co (LEVI.N) and Patagonia Inc filed briefs supporting the company's appeal.

Bennett Cooper, a lawyer for VIP Products, said that while he would have preferred the court not hear the Jack Daniel's appeal, the dispute provides the justices with a chance to adopt a clear standard for parodies that reconciles trademark law with free speech values.

"We think ours is a good test case to create a national standard," Cooper said.

Jack Daniel's through a spokesperson declined to comment.
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