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Supreme Court hears arguments on whiskey bottles, dog toys, pornography and poop

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(WASHINGTON) — A Supreme Court debate Wednesday over parody and popular commercial brands was dominated by talk of whiskey bottles, dog toys, pornography and poop.

For nearly two hours, in an argument punctuated by laughter, the justices wrestled with the intersection of freedom of speech and protection for trademarks in a case pitting a humorous dog toy maker against American whiskey producer Jack Daniel’s.

The case, Jack Daniel’s Properties Inc., v. VIP Products, centers on a chew toy that resembles a bottle of Jack Daniel’s whiskey but is spoofed as “Bad Spaniels” with the suggestion that its contents are pet waste.

“This case involves a dog toy that copies Jack Daniel’s trademark and trade dress and associates its whiskey with dog poop,” the whiskey maker’s attorney Lisa Blatt told the court on Wednesday.

The liquor company claims the toy’s design causes confusion and dilutes the quality of its brand. VIP Products insists the spoof is obvious and protected by the First Amendment.

“They’re complaining about the speech, the parody, the comparison to dog poop and a Bad Spaniel, not the mark,” VIP Products attorney Bennett Cooper said Wednesday. “Parodies on noncompetitive goods like Bad Spaniels aren’t likely to cause confusion.”

A district court sided with Jack Daniel’s but an appeals court reversed, upholding the toy. The justices considered what legal test should decide when a trademark has been infringed and whether VIP Products’ toy had done so.

“Could any reasonable person think that Jack Daniel’s had approved this use of the mark?” Justice Samuel Alito asked Blatt, representing the whiskey maker.

“Absolutely,” Blatt replied. “That’s why we won [in the district court].”

“I’m concerned about the First Amendment implications of your position,” Alito said.

Blatt, backed by dozens of U.S. brands like American Apparel, Campbell Soup Company and Nike, warned that allowing imitations like “Bad Spaniels” would open the floodgates to harmful trademark infringement — under the justification of “parody” — including in pornography.

Blatt told the justices that trademark owners could be victims of “something that approaches compelled speech if their mark has been used in porn films and porn toys and sex toys, and people are profiting off of that.”

She raised the ’70s pornographic film “Debbie Does Dallas,” which an appeals court in a separate case found had infringed the trademark of the Dallas Cowboys Cheerleaders.

Meanwhile, VIP Products argued that a dog toy is a “noncommercial” form of protected speech — a distinctive parody, said Cooper, one of their attorneys, because it does not explicitly say “Jack Daniel’s.”

“There’s no doubt that Jack Daniel’s takes itself very seriously,” Cooper quipped.

Some on the court did not appear convinced.

“Maybe I just have no sense of humor — but what’s the parody?” asked Justice Elena Kagan. She went on to suggest the chew toy is just an “ordinary commercial product” profiting from the likeness of a whiskey brand.

“You make fun of a lot of marks: Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Are all of these companies taking themselves too seriously?” she asked dryly.

Chief Justice John Roberts guided the morning’s arguments but did not ask any questions himself. Justices Brett Kavanaugh and Amy Coney Barrett did not speak at all throughout the proceedings.

There was no apparent consensus among the justices on which company should prevail or whether the matter should be sent back to a lower court for further consideration.

The court is expected to release a decision by the end of June.

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