In a previous ruling, the 9th U.S. Circuit Court of Appeals sided with VIP Products, dog toy’s called “Bad Spaniels” stating that their toys were obvious parodies and should be protected under the First Amendment as free speech. This prompted the whiskey brand, Jack Daniel’s to appeal to the Supreme Court for further review.
Creative expression or false impression?
On Thursday 8 June, the US Supreme Court made a decision in favor of Jack Daniel’s in a legal dispute over dog toys which resembled their signature whiskey bottle with a little twist of a poop theme.
The decision threw out the previous lower court’s ruling that the parodied chew toy is protected by the First Amendment as an “expressive work”. In the use of the Rogers test, Justice Elena Kagan said a precedent used for assessing the use of trademarks in artistic expression, did not apply to VIP’s products.
Rogers test – During the 1989 case of Rogers vs Grimaldi, Performer Ginger Rogers made a case against the producers and distributors of the film Ginger and Fred for creating a false impression of her involvement in the production.
Likelihood of Confusion
The dog toy has a label on its neck that says “Old No. 2,” referring to the label “Old No. 7” on Jack Daniel’s bottles. It also says “Old No. 2 on your Tennessee Carpet” on the body, referencing the main label on the whiskey bottles.
Jack Daniel’s argued that there is a likelihood of confusion, meaning consumers may mistake the toy for an official product and violate trademark law.
Trademark rights vs creative of expression
Several companies, including Nike, Campbell Soup, and American Apparel, supported Jack Daniel’s in their legal battle, as they believed the appeals court’s interpretation of the law posed a threat to trademark protections that maintain the value of well-known brands.
On the other hand, free speech advocates such as the Electronic Frontier Foundation supported VIP Products, emphasizing the importance of people being able to express their opinions and mock famous brands.
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