08 June 2023 , 17:25
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The US Supreme Court has sided with famous whiskey maker Jack Daniel's in a trademark battle with the makers of a poo-themed dog toy.
The toy from Arizona-based company VIP Products mimics the iconic Jack Daniel's square whiskey bottle, but with poo related twists.
In an unanimous vote the high court wiped away a lower court ruling and sent the case back to the lower courts.
Announcing the Court's unanimous decision, Justice Elena Kagan wrote: "We hold only that it is not appropriate when the accused infringer has used a trademark to designate the source of its own goods — in other words, has used a trademark as a trademark.
Jack Daniel's make whiskey out of Lynchburg, Tennessee (AP)"That kind of use falls within the heartland of trademark law, and does not receive special First Amendment protection."
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VIP Products has been selling its Bad Spaniels toy since 2014. It’s part of its Silly Squeakers line of chew toys that mimic liquor, beer, wine and soda bottles.
They include Mountain Drool, which parodies Mountain Dew, and Heini Sniff’n, which parodies Heineken.
While Jack Daniel’s bottles have the words “Old No. 7 brand” and “Tennessee Sour Mash Whiskey,” the toy proclaims: “The Old No. 2 on Your Tennessee Carpet.”
Jack Daniel's had asked the Supreme Court justices to hear its case against the manufacturer of the Bad Spaniels dog toy (AP)The original bottle notes it is 40% alcohol by volume. The parody features a dog’s face and says it’s “43% Poo by Vol.” and “100% Smelly.”
The packaging of the toy, which retails for around $20, notes in small font: “This product is not affiliated with Jack Daniel Distillery.”
According to the head of VIP Products the motivation behind the toy was to create a parody product that amused the public.
But Jack Daniel's used federal trademark law to put an end to the silly imitation.
Lawyers for the toy-maker argued that the product should be protected under free speech (AP)The Lanham Act bans the use of a trademark in a way that could cause confusion about its origin.
This is the latest turn in the legal tennis between different US courts.
Jack Daniel's previously won before a federal district court but that decision was overturned by the US Court of Appeals for the 9th Circuit who ruled that the design portrayed a funny message and was therefore protected under the First Amendment.
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