Parody Ethics: What Is This Case Doing At The Supreme Court? [Corrected]

Well, KABOOM! There goes my head.

Absurdly, Jack Daniel’s, the largest American whiskey manufacturer, sued VIP Products, one of the principle American dog toy manufacturer (Spuds loves their toys) over a parody plastic squeaky toy modeled on Jack Daniel’s bottles. (Spud likes a squeaky toy that looks like a Coor beer bottle). On the dog toy, as you can see, instead of describing “Old No. 7 Tennessee Sour Mash Whiskey” manufactured by “Jack Daniel’s,” the toy is “Bad Spaniel,” “Old No. 2 on your Tennessee carpet.”

Oral argument at the Supreme Court was yesterday. Finding a likelihood that consumers would confuse the “Bad Spaniels” toy with Jack Daniel’s, the trial court ruled in favor of the liquor company and barred VIP from continuing to manufacture the parody toy, ruling, believe it or not, that that consumers would confuse the “Bad Spaniels” toy with Jack Daniel’s whiskey. Yeah, I always have that problem, mixing up dog toys with liquor bottles. The U.S. Court of Appeals for the 9th Circuit reversed on both counts, because the trial court’s theory was…well, let Sidney Wang explain:

Citing the federal Lanham Act, the 9th Circuit concluded that VIP’s communication of a humorous message called for heightened scrutiny to ensure that trademark protection for Jack Daniel’s did not intrude on the First Amendment. The law of parody has been fairly well defined since the days of Mad Magazine (RIP), and I depend on it, since ProEthics uses song parodies in many of my ethics seminars. If Jack Daniel’s were to prevail, the ruling would send the world of parody and satire into chaos. I find it hard to believe that the appeals court won’t be upheld.

But the usually sound legal writer at SCOTUS blog, Ronald Mann, opines,

I may be wrong in my impression, but I suspect that at the end of the day a large group of justices will have little sympathy for the notion that the First Amendment compels protection for a parody likening Jack Daniel’s to canine excrement.

Wow. He’s not only wrong in his impression, he apparently doesn’t get what parodies are. The dog toy isn’t “likening Jack Daniel’s to canine excrement” at all. The toy is based on a play on words between “Daniel’s” and “Spaniels,” and that’s all there is to it. The dog toy doesn’t “dilute” the brand; if anything, the parody is a compliment, because if the brand weren’t so well known, the joke, juvenile though it is (but dogs aren’t too sophisticated), wouldn’t work.

I do think it is weird that SCOTUS even agreed to hear the case rather than just letting the 9th Circuit ruling stand.

14 thoughts on “Parody Ethics: What Is This Case Doing At The Supreme Court? [Corrected]

  1. The 9th Circuit made a reasonable decision? And it’s going to be overturned? As you ask, why on earth was Cert. granted? Was there a conflict among the Circuits on this?

    I wonder whether Brown-Foreman thinks the dog toy company should be required to pay a licensing fee in order to manufacture and sell a dog toy that looks like a bottle of Jack. Maybe it’s a trade dress case? I’m guessing the toy’s a big seller in the Jack Daniels Demographic: “Lookee there! Cooder’s got his own danged bottle a Jack! Dang, ain’t that dog somethin! Whoo-ee. Easy there feller. You sure as hell cain have too much of a good thang.”

        • “The Old No. 2” is pretty funny as well. Took me a while to get it. Sixth grade was a long time ago. I haven’t heard “No. 1” vs. “No.2” in a long, long time.

    • There’s a lot of parody products in this style… If I look just at Jack Daniels parodies, there’s also “Pooch Daniels-90% wolf pooch hooch”, “Wet nose old bones Tennessee whiskey”, “Bad Dog Jack’s Old K-9 I gotta pee whisky”, and especially made for our blog host “JackRussell’s Fuzz yard woof woof whiskey “.

      There’s a evidently a large industry watching this closely.

  2. By the time a customer is confusing the whisky bottle with the squeaky toy, I’m sure the liquor company has earned a profit on that guy.

    • It’s all hooch to me, Ernest. I think it was either William Faulkner himself, or one of his characters, who is quoted as saying “I’d just as soon drink gasoline as drink whiskey.” That would be me. Other than in whiskey sours. But I guess that’s an old lady drink.

    • I’ll fix that. My Kentucky-born father would be annoyed. He applauded the fact that Don McLean nade the sitinction between “whiskey and rye,” saying that most non-Southerners didn’t know the difference.

      • But aren’t all mash distillates whiskey? They just differ because of what goes into the mash? Scotch is just whiskey made in Scotland. Bourbon doesn’t have to be made in Kentucky. There’s Canadian whiskey and Irish whiskey. So, names like Bourbon, Scotch, and Rye are kind of apples and oranges. Confusing. And then there’s real hooch: White Lightnin’. No aging, I guess. Clear.

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