The US Supreme Court is set to witness a trademark battle over a poop-themed dog toy which is set to be shaped like the whiskey bottle of Jack Daniel. The case will redefine how constitutional free speech rights are applied by the judiciary to trademark law.
The case will be argued on Wednesday. The nine justices are likely to clarify the line between a parody protected by the First Amendment of the US Constitution and a trademark infringing ripoff in this legal dogfight case. The court is likely to give a ruling by June end.
Jack Daniel’s Properties Inc is appealing against the decision of a lower court that the VIP Products LLC’s “Bad Spaniels” chew toy is an “expressive work” which has received protection by the Constitution’s First Amendment.
Concern has been expressed by some companies that the court’s ruling against Jack Daniel’s claim would badly affect their control over their reputations and brands. Meanwhile, others believe that if the court delivers a ruling in favour of the whiskey maker, it would stifle free-speech rights.
“This is an interesting case because it’s a court that does care about the First Amendment but also cares about business. And this is a case where those interests intersect in a way that’s kind of hard to sort out,” stated Elizabeth Brannen, who works as a partner at the law firm Stris & Maher and has appeared in intellectual property cases before the Supreme Court.
The toy looks like Lynchburg, the famous whiskey bottles of Tennessee-based Jack Daniel with humorous dog-themed alterations and has just changed “Old No. 7” with “the Old No. 2, on your Tennessee Carpet” and altered the alcohol descriptions with “43 per cent Poo By Vol.” and “100 per cent Smelly”.
“Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop,” the company stated to the justices in a brief.
VIP Products stated that if the ruling is delivered in favour of Jack Daniel, it would make it easier to stifle free speech for trademark owners.
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“Every First Amendment case has a spillover effect into other areas,” said VIP’s attorney Ben Cooper of the firm Dickinson Wright. “So this can’t be seen as being compartmentalised into the world of trademarks,” he added.
“Whenever one person’s speech is limited, it gets everyone else nervous,” Cooper stated.
VIP said that its toy comments on “iconic alcohol brands’ self-serious bombardment of consumers with advertising and dog owners’ joyful humanisation of their pets”.
(With inputs from agencies)
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