A major whiskey manufacturer wants the U.S. Supreme Court to stop an Arizona firm from producing a dog toy that the company’s attorneys say associates its “image of sophistication” with “juvenile bathroom humor.”
And it could all come down to whether the justices think it’s funny.
The petition by Jack Daniels seeks to bar Scottsdale-based VIP Productions from producing and selling a squeaky dog toy in the shape of — and with a label that looks like — a bottle of the company’s Old No. 7 Black Label Tennessee Whiskey.
There are some differences.
For example, the “Old No. 7 Tennessee Sour Mash Whiskey” on the label is replaced by “The Old No. 2 on your Tennessee Carpet.” It’s also labeled “Bad Spaniels” instead of “Jack Daniels.”
And instead of alcohol-content descriptions, the toy was labeled “43% Poo by Vol.” and “100% Smelly.”
A trial judge sided with the whiskey company, citing evidence that 29 percent of consumers believed Jack Daniels actually sponsored the toy, declaring that it infringed on the company’s trademark. But the 9th Circuit Court of Appeals saw the issue through a different legal lens.
“The toy communicates a humorous message, using word play to alter the serious phrase that appears on a Jack Daniels bottle — ‘Old No. 7 Brand’ — with a silly message — ‘The Old. No. 2,’ ” wrote Judge Andrew Hurwitz for the court. “The effect is a simple message conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.”
Hurwitz wrote that the whole purpose is to comment humorously on the message conveyed by a Jack Daniels bottle. And that doesn’t mean it has to be on something like a formal work of art.
“The fact that VIP chose to convey this humorous message through a dog toy is irrelevant,” the judge said.
The company is clearly not amused.
“Jack Daniels has invested substantial resources into an image of sophistication,” attorney Lisa Blatt, who represents the company, told the high court. “Accordingly, Jack Daniels has a strong interest in protecting its trademarks and trade dress from association with juvenile bathroom humor.”
Blatt also told the justices that the company “carefully licenses” its images on non-whiskey products, including pet products like branded dog leashes, dog collars and dog houses. She said the toy in question is likely to confuse consumers about who is sponsoring it.
What’s happening here, she said, is VIP Products “pirated” the Jack Daniels trademarks and design of its bottle by imitating it “while adding dog poop humor.”
And Blatt took a swat at the 9th Circuit for failing to apply what she said is supposed to be the legal standard: the likelihood of confusion.
“In other words, because the court of appeals thought VIP Products’ notorious copying was funny, it held that the company has a First Amendment interest in confusing consumers into believing that Jack Daniels sponsors a dog toy spotlighting poop,” she wrote.
VIP is due to file its response to the lawsuit next month.
What the court rules could have a spillover effect onto other products manufactured by VIP.
The company’s web site features similar products, including Heine Sniff’n in something that looks like a Heineken bottle, Mountain Drool that mimics a Mountain Dew bottle, and Cataroma that bears more than a passing resemblance to Corona.