WASHINGTON (AP) 鈥� The company that makes Jack Daniel's is howling mad over a squeaking dog toy that parodies the whiskey's signature bottle. Now, the liquor company is barking at the door of the .
Jack Daniel's has asked the justices to hear its case against the manufacturer of the plastic Bad Spaniels toy. The high court could say as soon as Monday whether the justices will agree. A number of major companies from the makers of Campbell Soup to outdoor brand Patagonia and jeans maker Levi Strauss have urged the justices to take what they say is an important case for trademark law.
The toy that has Jack Daniel's so doggone mad mimics the square shape of its whisky bottle as well as its black-and-white label and amber-colored liquor while adding what it calls 鈥減oop humor.鈥� While the original bottle has the words 鈥淥ld No. 7 brand鈥� and 鈥淭ennessee Sour Mash Whiskey,鈥� the parody proclaims: 鈥淭he Old No. 2 on Your Tennessee Carpet.鈥� Instead of the original's note that it is 40% alcohol by volume, the parody says it's 鈥�43% Poo by Vol." and 鈥�100% Smelly.鈥�
The toy retails for about $13 to $20 and the packaging notes in small font: 鈥淭his product is not affiliated with Jack Daniel Distillery.鈥�
The toy's maker says Jack Daniel's can't take a joke. 鈥淚t is ironic that America鈥檚 leading distiller of whiskey both lacks a sense of humor and does not recognize when it 鈥� and everyone else 鈥� has had enough," lawyers for Arizona-based VIP Products wrote the high court. They told the justices that Jack Daniel鈥檚 has 鈥渨aged war鈥� against the company for 鈥渉aving the temerity to produce a pun-filled parody鈥� of its bottle.
But Jack Daniel's lead attorney, Lisa Blatt, made no bones about the company's position in her filing.
鈥淭o be sure, everyone likes a good joke. But VIP鈥檚 profit-motivated 鈥榡oke鈥� confuses consumers by taking advantage of Jack Daniel鈥檚 hard-earned goodwill,鈥� she wrote for the Louisville, Kentucky-based Brown-Forman Corp., Jack Daniel鈥檚 parent company.
Blatt wrote that a lower court decision provides 鈥渘ear-blanket protection鈥� to humorous trademark infringement. And she said it has 鈥渂road and dangerous consequences," pointing to children who were hospitalized after eating marijuana-infused products that mimicked candy packaging.
If VIP Products is allowed to confuse consumers with dog toys, "other funny infringers can do the same with juice boxes or marijuana-infused candy,鈥� Blatt wrote.
The toy is part of a line of VIP Products called Silly Squeakers that mimic liquor, beer, wine and soda bottles. They include Mountain Drool, which parodies Mountain Dew, and Heini Sniff'n, which parodies Heineken. A court in 2008 barred the company from selling its Budweiser parody, ButtWiper.
After the company began selling its Bad Spaniels toy in 2014, Jack Daniel's told the company to stop, but VIP went to court to be allowed to continue to sell its product. Jack Daniel's won the first round in court but lost an appeal. The case reached the Supreme Court at an earlier stage, but the justices didn't bite.
Bad Spaniels isn't the only parody puppy toy to draw the ire of the brand it imitated. Luxury bag maker Louis Vuitton sued the makers of Chewy Vuiton over their plush purse dog toys. In 2007 a federal appeals court sided with the chew toy's manufacturers, Nevada-based Haute Diggity Dog. Louis Vuitton didn't appeal to the Supreme Court.
The case is Jack Daniel's Properties Inc. v. VIP Products LLC, 22-148.
Jessica Gresko, The Associated Press
