The Jack Daniel toy that imitates Jack Daniel’s dress and whiskey: Why it’s not a joke, but it is an obligation to protect the First Amendment
Lisa Blatt, the Jack Daniel’s lawyer, got right to the point with her opening sentence. The case is about a dog toy that imitates Jack Daniel’s trademark and dress and associate its whiskey with dog poop.
When asked if someone uses a political party logo to make a T-shirt with a picture of an obviously drunk Elephant and a message, that’s what she said. Isn’t it protected by the First Amendment? If there is a conflict between the First Amendment and trademark protection, then free speech gets the better of it. Beyond that, he said, no CEO would be stupid enough to authorize a dog toy like this one. Would anyone be able to say that Jack Daniel’s had approved this use of the mark? he asked.
The case is centered around a toy that is strikingly similar to Jack Daniel’s bottles. A black label and similar style to the glass bottle, the plastic bottle has the same general shape as the toy, but is made out of plastic.
Jack Daniel’s lawyers said that people like a good joke. “But VIP’s profit-motivated ‘joke’ confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill.”
Everyone agrees that the guy is trying to be funny. They wrote that alcohol and toys and excrement are not good for each other. Food and poison, cartoon characters, pornography, children’s toys and illegal drugs could be involved in the next case.
“It is ironic that America’s leading distiller of whiskey both lacks a sense of humor and does not recognize when it – and everyone else – has had enough,” the toy company told the court.
“Though defendants will often have an incentive to label it as such, not every humorous use of another’s trademark is a parody,” Nike wrote in its brief. “Courts therefore should take a disciplined approach to this important classification in cases where ‘parody’ is claimed.”
The Supreme Court has heard arguments in a similar case involving the late artist Andy Warhol and the late musician Prince, and this time they are expected to rule later this term. During those arguments, the justices attempted to determine when a new work based on a prior piece is substantially transformative, and when it simply amounts to a copycat version of an existing work subject to copyright rules.
Making the contrary argument was VIP’s lawyer, Bennet Cooper. He said that popular brands are a kind of celebrity. People are allowed to talk about celebrities and even make fun of them.
As for the justices, they were all over the place, with conservative Justice Samuel Alito and liberal Justice Sonia Sotomayor both asking questions about how the first amendment right of free speech intersects with trademark laws that are meant to protect brands and other intellectual property.
Business executives make mistakes all the time, said lawyer Blatt. But Alito wasn’t buying it. “I had a dog. I know something about dogs. The question is not what an average person would think. It’s whether this should be a reasonable person standard, to simplify this whole thing.”
The case was sent back to the lower court with instructions to screen out or screen in some products for trademark violation, which the Justices looked for on a number of occasions.
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This is a commercial product. she said. This is not a political shirt. It’s not a movie. It’s not an artistic photograph. It’s not related to those things.
Whatever the court is going to do with this case is still unknown at the end of the day. The three justices who were silent gave no hint of their thinking.