By Lloyd Davis
Howard University News Service
Jack Daniel’s Properties Inc. will begin arguments in its trademark violation suit over a replica dog toy today in the U.S. Supreme Court.
The company sued VIP Products, which sells a dog toy that heavily resembles the iconic Jack Daniel’s bottle. In place of “Old No. 7 Brand … Tennessee Sour Mash Whiskey,” the toy label reads “Bad Spaniels … The Old No.2 on Your Tennessee Carpet.” Jack Daniel’s said it did not want its product associated with poop, which could potentially hurt its brand reputation.
Major companies and industries rely heavily on branding and marketing to better sell their products. Recognizability is an important part of a brand’s growth and sustainability within culture. Take a company like McDonald’s, which is known worldwide for the golden arches, or Nike for its swoosh. Even government institutions have recognizable logos. But at what point is something creeping into copyright infringement? Are VIP’s products protected by the First Amendment?
Jack Daniel’s contacted VIP and warned the company of possible infringement. VIP responded by filing a suit to get a declaration that its product was within fair use. U.S. District Judge Stephen M. McNamee of Arizona ruled in favor of Jack Daniel’s and placed an injunction on VIP from selling the toy.
VIP appealed to the U.S. Court of Appeals for the 9th Circuit, which unanimously reversed the majority of McNamee’s ruling. Jack Daniels was not pleased with this outcome and filed a petition for a writ of certiorari in the U.S. Supreme Court. In November 2022, the Supreme Court agreed to hear the case, and oral arguments will begin at 10 a.m. today.
In a nutshell, Jack Daniel’s is arguing that the 9th Circuit Court was too lenient on VIP in considering its product a parody and humorous. Jack Daniel’s claims that VIP’s product is tarnishing its brand name.
Trademark law protects a parody under the statutory fair use doctrine. The fair use doctrine permits limited use of copyrighted material without having to first acquire permission from the copyright owner.
However, the lines start to blur when companies begin pushing the limits of how much they can copy from another company. Nike is also undergoing a case of copyright infringement against A Bathing Ape known as BAPE, which has been copying the silhouette of famous Nikes like the Air Jordan 1 and Air Force 1.
Another issue with the Jack Daniel’s case is determining if it falls under the Lanham Act. This act protects the owner of a federally registered mark against the use of similar marks if such is likely to result in consumer confusion. Companies that produce marijuana edibles have also been dealing with consumer confusion. Lisa Blatt, the attorney for Jack Daniel’s, points to instances where children consume edibles thinking they are regular candy because of their packaging and then become hospitalized.
Other major brands have also come out in support of Jack Daniel’s during this case. Brands such as Campbell’s soup, Patagonia and Levi’s believe that this will be an important case for trademark law. If Jack Daniel’s loses this case, it would be a big blow to these large corporations. This could open the floodgates for smaller businesses to freely copy ideas without worrying about copyright infringement since they could fall back on parody and humor in their product.
This is already happening with VIP, whose lawyers said, “It is ironic that America’s leading distiller of whiskey both lacks a sense of humor and does not recognize when it — and everyone else — has had enough.”
Lisa Blatt responded: “To be sure, everyone likes a good joke. But VIP’s profit-motivated ‘joke’ confuses consumers by taking advantage of Jack Daniels’ hard-earned goodwill.”
Overall, this will likely be a major case in the history of the Supreme Court, indicating how the justices view copyright and if laws like the Lanham Act hold any weight. It will also be interesting to see if the results of the Jack Daniel’s and VIP case have any effect on the outcome of Nike’s lawsuit.
Lloyd Davis is a reporter for HUNewsService.com.