It was a crappy Thursday for "Bad Spaniels Silly Squeaker" — a poop-themed doggie toy that parodies the Jack Daniel's iconic whiskey bottle — when the Supreme Court ruled that Jack Daniel's could move forward with its trademark lawsuit against the toy's creator, VIP Products.
The joke toy caused quite a stink earlier this year, when Jack Daniel's sued VIP over its product's very close resemblance to the liquor bottle. Apparently, Jack Daniel's worried that the canine squeaker — whose bottle-shaped design humorously replaces "Old No. 7" with "Old No. 2" and "Tennessee Sour Mash Whiskey" with "On Your Tennessee Carpet"— could confuse their own consumers into thinking they might be drinking liquid doo doo rather than liquid gold whiskey.
The lower courts had ruled that "the toy was covered by the First Amendment's free speech protections," according to CNN. But today the Supreme Court sided with Jack Daniel's.
From CNN:
At the center of the case is the toy created by VIP Products that is strikingly similar to Jack Daniel's bottles. The distiller sued the company over the toy – which is replete with scatological humor – claiming it violated federal trademark law, which usually centers around how likely a consumer is to confuse an alleged infringement with something produced by the true owner of the mark.
Though the court's decision is a win for Jack Daniel's – which argued that an appeals court made a mistake when it said the toy was "non-commercial" and therefore enjoyed constitutional protection – the justices declined to grant the distiller's request to completely throw out the test an appeals court used when it ruled in favor of the toy, a move that would have given trademark holders wide latitude to sue companies that parody their marks on consumer goods.
"Today's opinion is narrow. We do not decide whether the Rogers test is ever appropriate, or how far the 'noncommercial use' exclusion goes," Kagan wrote, adding: "The use of a mark does not count as noncommercial just because it parodies, or otherwise comments on, another's products."
"We hold only that it is not appropriate when the accused infringer has used a trademark to designate the source of its own goods – in other words, has used a trademark as a trademark. That kind of use falls within the heartland of trademark law, and does not receive special First Amendment protection," she said.
Although it might cause a stink, for now the squeaker toy is permitted to remain on the pot, er, market.
