‘Poop-themed’ Jack Daniel’s dog toy parody not protected by First Amendment, Supreme Court says

An Arizona company that sells squeaky, chewable dog toys spoofing Jack Daniel’s whiskey is not protected by the First Amendment, the Supreme Court said Thursday.

In a narrow, unanimous ruling in favor of Jack Daniel’s Properties Inc., the high court rejected a lower court’s finding that VIP Products’ parody dog toy is protected from Jack Daniel’s claims of trademark infringement. 

The case centered on one of dozens of novelty pet products sold by VIP Products, namely a “Bad Spaniels” vinyl toy shaped like a liquor bottle. The company advertised the toy as “Silly and Fun For Everyone!”

The whiskey maker was not amused. Jack Daniel’s Properties sent a letter to VIP Products claiming the pet company broke the law with a “poop-themed” toy that infringed on its trademark and damaged its brand by confusing customers. VIP responded with a lawsuit.

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The chew toy has the words “The Old No. 2 on Your Tennessee Carpet,” a play on the Jack Daniel’s phrase “Old No. 7 brand.” While the Jack Daniel’s bottle reveals that it is 40% alcohol by volume, the toy’s label playfully indicates that it is “43% Poo by Vol.” and “100% Smelly.”

VIP says its packaging makes clear that “This product is not affiliated with Jack Daniel Distillery.”

Despite this, the beverage company argued that the significant similarities could lead people to believe that they are affiliated with the pet toy.

“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,” lawyers for Jack Daniel’s told the Court.

If their appeal were to fail, they warned, “anyone could use a famous mark to sell sex toys, drinking games, or marijuana bongs, while misleading customers and destroying billions of dollars in goodwill — all in the name of just having fun. Humor does not transform [federal law] into a trademark free-for-all.”

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The pet products company countered, “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.”

An appeals court decision found that VIP Product’s parody was protected by the First Amendment as an “expressive” piece of work. The lower court also held that VIP Products did not dilute Jack Daniel’s trademark because as a parody it commented on Jack Daniel’s products.

The Supreme Court rejected both these conclusions. Justice Elena Kagan, writing for the majority, said VIP Products is not protected by the First Amendment because VIP Products had used its “Bad Spaniel’s” design as their own trademark — which Kagan said “used a trademark as a trademark.”

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“That kind of use falls within the heartland of trademark law and does not receive special First Amendment protection,” Kagan wrote.  

On the dilution question, the court’s determination was simple. 

“The use of a mark does not count as noncommercial just because it parodies, or otherwise comments on, another product’s,” Kagan wrote. 

The Jack Daniel’s case was watched closely by free speech advocates, artists, and corporations with popular trademarked brands. Kagan said the court’s opinion is “narrow,” and does not radically alter or clarify trademark precedent. 

The Supreme Court vacated the appeals court’s decision and remanded the case for further proceedings consistent with its ruling. 

Fox News’ Greg Wherner and Reuters contributed to this report.