Jessica Gresko/The Associated Press
- The Supreme Court is set to hear arguments in a case over a dog toy modeled after a Jack Daniel's bottle.
- The whiskey maker claims the toy harms its brand by making customers associate its design with dog poop.
- Lower courts have differed on whether the toy harms Jack Daniel's brand or is protected expression.
A trademark case set to be argued before the Supreme Court this week centers around a dog toy modeled after a Jack Daniel's bottle that the whiskey company claims is harmful to its brand by associating its label and design with dog poop.
The company is seeking to overturn a lower court ruling that determined the "Bad Spaniels" toy from VIP Products is protected by the First Amendment and intended as a joke not meant to harm Jack Daniel's.
The toy trades in Jack Daniel's iconic "Old No. 7 Brand Tennessee Sour Mash Whiskey" label for a dog-themed design that advertises "The Old No. 2 On Your Tennessee Carpet" from the "Bad Spaniels" brand. While Jack Daniel's bottles say the whiskey is 40% alcohol by volume, the toy bottle states that it is "43% poo by vol." and "100% smelly".
"To be sure, everyone likes a good joke," lawyers for Jack Daniel's wrote in a court filing. "But VIP's profit-motivated 'joke' confuses consumers by taking advantage of Jack Daniel's hard-earned goodwill."
Jack Daniel's and other companies like Nike and Campbell Soup filed briefs in support of the whiskey maker, arguing that allowing the product to stand as artistic expression will leave them vulnerable to other parodies that could harm their brands.
VIP's lawyers have argued that ruling in favor of Jack Daniel's will create precedent that would make it easier for trademark holders to limit the protected free speech of others, according to Reuters.
In court filings, Jack Daniel's lawyers say a district court ruled that the toy violated the Lanham Act, a law that protects trademark holders if another product is believed to cause confusion among consumers about its origin and whether it's associated with the known trademark.
But on appeal, the Ninth Circuit Court of Appeals ruled that the clearly humorous product was protected by the First Amendment.
For works of artistic expression, it must be proven that use of the trademark is irrelevant to the work, and that the creator is intentionally misleading consumers into believing the trademark holder is involved. Since that could not be proven in the case of the dog toy, the Ninth Circuit court ruled that it was protected by the First Amendment.
"The Bad Spaniels dog toy, although surely not the equivalent of the Mona Lisa, is an expressive work," Judge Andrew Hurwitz wrote in the ruling.
Arguments on the case are set to be heard by the Supreme Court Wednesday, and a decision is expected later this year.
Jack Daniel's did not immediately respond to Insider's request for comment.