The Supreme Court has ruled against a dog toy that resembles a bottle of Jack Daniel’s

Supreme Court It was decided on Thursday The First Amendment does not protect a dog chew that resembles a bottle of Jack Daniel’s from a case of trademark infringement.

The Bad Spaniels Silly Squeaker toy is shaped like a Jack Daniel’s bottle and has other unique features. said the Court of Appeal judge“Mild, dog-related changes.”

The words “Old No. 7 Brand Tennessee Sour Mash Whiskey” on the bottle have been replaced on the doll with “Old No. 2 on your Tennessee rug.” While Jack Daniel’s says its product is 40 percent alcohol by volume, Bad Spaniels is said to be “43 percent booze.”

A tag attached to the toy reads, “Not affiliated with Jack Daniel’s Distillery.”

Justice Elena Kagan, writing for a unanimous court, was amused by the controversy. “This case is about dog toys and whiskey,” he wrote, “two things that rarely appear in the same sentence.”

He also said that almost everyone knows the characteristics of a whiskey bottle.

“A bottle of Jack Daniel’s — no, Jack Daniel’s Old No. 7 Tennessee Sour Mash Whiskey — has a fair number of trademarks,” he wrote. “Remember what the bottle looks like (or better yet, retrieve a bottle from where you keep the liquor; it might be there).”

After reproducing a color photograph of the bottle, he continued: “‘Jack Daniel’ is a registered trademark, as is ‘Old No. 7.’ What is considered to be the base for the marks – the distinctive square bottle of whiskey – is itself registered.

Trademark cases typically address whether the public may be confused about the source of a product. In the case of Bad Spaniels, A unanimous three-judge panel The Ninth Circuit Court of Appeals in San Francisco held that the First Amendment requires a more demanding test when the challenged product expresses an idea or vision.

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“Bad Spaniels dog doll, though certainly not the equivalent of the Mona Lisa, is an expressive work,” which uses irreverent humor and puns to poke fun at Jack Daniel’s, Judge Andrew D. Hurwitz Wrote to the group.

But Justice Kagan said there was no role for “any First Amendment filter” in the case. Rather, he wrote, “the infringement claim here arises or falls on the likelihood of confusion.”

This is the classic inquiry in trademark cases. But Justice Kagan, returning to lower courts to review the case, said the mockery of a toy chewing on a liquor bottle should be found in the analysis because it’s not clear that consumers would think Jack Daniel’s was responsible for a toy being funny. itself.

Judge Samuel A. Alito Jr. made a similar point when the case was argued in March, envisioning a pitch meeting with a Jack Daniel’s executive.

“Someone at Jack Daniel’s comes to the CEO and says: ‘I have a great idea for a product that we’re going to make. It’s going to be a dog toy, and it’s going to have a label like ours, and it’s going to have a name like our name, Bad Spaniels. going, and what’s going to be on this dog toy is dog urine,” Justice Alito said, adding that consumers are unlikely to think that the chew toy was manufactured or endorsed by a filter.

Justice Kagan echoed the sentiment in his opinion. “Consumers,” he wrote, “are unlikely to think that the maker of a mocked product is mocking.” He added, “Self-esteem is one thing; self-mockery is much less normal.”

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In a concurring opinion, Justice Sonia Sotomayor, joined by Justice Alito, cautioned lower courts not to be too reliant on general opinion in trademark cases, saying, “The intent is to show that consumers are likely to be confused by an infringing product.”

Those studies, he wrote, “may reflect a false belief among some survey respondents that all parodies require permission from the owner of the parodied mark.”

In Supreme Court Summary In the case, Jack Daniels Properties v. VIP Products, no. 22-148, the distiller’s attorneys wrote that “everyone loves a good joke.” But the chew toy, he said, “is confusing consumers with Jack Daniel’s hard work.”

Lawyers for the toy manufacturer, VIP Products, said, “It follows in the farce tradition of playing for more than half a century. Topps’ wacky sets of trading cards By ‘Weird Al’ Yankovic.

Trading cards for fake products impersonating the real thing, such as Ratz Crackers, Jolly Mean Giant and Gulp Oil, were so popular that in the 1970s, they even outsold Topps baseball cards. “The World’s Not Over Yet,” VIP Productions told the judges.

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