Supreme Court Decision: Jack Daniel’s Properties, Inc. v. VIP Products LLC.

On March 22, 2023, the Supreme Court heard oral arguments to determine how First Amendment trademark principles should apply to a dog toy produced by VIP Products.

The Bad Spaniels dog toy, which closely resembles a Jack Daniel’s whiskey bottle in size, shape, and font, has resulted in a trademark infringement lawsuit against VIP Products by Jack Daniel’s. VIP Products has countered that the toy is an expression protected by the First Amendment.

Photo from the New York Times

The U.S. Court of Appeals for the Ninth Circuit previously ruled that the toy was an “expressive work” under the Rogers test. Under the Rogers test, a finding of trademark infringement is prevented if the use is artistically relevant to the underlying work and does not explicitly mislead consumers as to the source or content of the work.

The Supreme Court now faces the task of deciding whether the humorous use of another’s trademark as one’s own on a commercial product is subject to the likelihood-of-confusion analysis under the Lanham Act or entitled to heightened First Amendment protection.

During oral arguments, most Justices appeared sympathetic to Jack Daniel’s. Jack Daniel’s argued that the Ninth Circuit decision was egregiously wrong, and that humor should not transform the Lanham Act into a trademark fee-for-all. Jack Daniel’s is currently receiving support from companies such as Nike, Patagonia, and the Biden Administration.

VIP Products, on the other hand, claims that the toy in question is essential to parody and that they had to borrow enough from the iconic Jack Daniel’s bottle to make the parody work. Justice Alito appeared unpersuaded that Jack Daniel’s faced any real-world risk of confusion. Pet owners who purchase these toys are not likely to mistake the source of the goods.

In summary, the Supreme Court must determine whether the Bad Spaniels dog toy is protected by the First Amendment or constitutes trademark infringement. The outcome of this case could have significant implications for the intersection of free speech and intellectual property law.


Stay tuned to find out how the Court rules.

Link to oral arguments:

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