On the rocks: Jack Daniel’s in Supreme Court battle with dog toy maker

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.” 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 $US20 ($29.90), notes in small font: “This product is not affiliated with Jack Daniel Distillery.”

Jack Daniel’s, based in Lynchburg, Tennessee, isn’t amused.

“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,” wrote the company’s attorney Lisa Blatt in a filing with the high court.

Blatt wrote that Jack Daniel’s “welcomes jokes at its expense” but that the toy VIP sells misleads customers, profits “from Jack Daniel’s hard-earned goodwill” and associates its “whiskey with excrement.”

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At the heart of the case is the Lanham Act, the country’s major trademark law. It prohibits using a trademark in a way “likely to cause confusion … as to the origin, sponsorship, or approval of … goods.” Jack Daniel’s says that’s what the dog toy does. It says a lower court was wrong to side with VIP.

But VIP Products’ lawyer, Bennett E. Cooper, told the justices in a court filing that Jack Daniel’s “seeks to use the Lanham Act to muzzle even VIP Products LLC’s playful dog-toy parody.”

Nike, Campbell Soup Company, outdoor brand Patagonia and jeans maker Levi Strauss were among those urging the justices in court filings to side with Jack Daniel’s. The company also has the support of the Biden administration, with the US Solicitor General saying in January that VIP’s toy should not have been immune from the lawsuit and that the constitution “does not confer any right to use another person’s trademark, or a confusingly similar mark, as a source identifier for goods sold in commerce.”