Jack Daniel's tells Supreme Court its brand is harmed by dog toy Bad Spaniels
LEILA FADEL, HOST:
The U.S. Supreme court today - one side will be talking about its iconic liquor bottle and trademark; the other side will be talking about parody and free expression. And both will be talking about dog poop. NPR legal affairs correspondent Nina Totenberg explains.
NINA TOTENBERG, BYLINE: Jack Daniel's, the famous Tennessee whiskey company, is trying to stop production and marketing of a chewy dog toy called Bad Spaniels. The toy, shaped and decorated like a Jack Daniel's bottle, features a spaniel and the name Bad Spaniels on the label instead of the iconic Jack Daniel's name. And instead of promising 40% alcohol by volume, it promises, quote, "43% poo by volume, 100% smelly." The toy is part of a line of chewy dog toys called Silly Squeakers, which parodies other famous brands and is manufactured by VIP Products. VIP's owner, Stephen Sacra, says he got the idea for the Bad Spaniels parody when he found himself at a bar staring at a Jack Daniel's bottle. So he picked up the phone and called his graphics designer.
STEPHEN SACRA: I go, I got two words for you. She's like, what? I go, Bad Spaniels. And she's like, I got it.
TOTENBERG: Within 48 hours, they had the draft design for a new toy that is now the company's best-selling product in major stores across the country. Jack Daniel's Whiskey is not amused. It has been trying, so far unsuccessfully, to stop VIP from selling the Bad Spaniels toy. Today, Jack's lawyer is telling the Supreme Court that the toy infringes on its trademark, confuses consumers and tarnishes its reputation. Jack Daniel's would not allow its lawyer to be interviewed for this broadcast. But as it argues in its brief...
UNIDENTIFIED PERSON: (Reading) Jack Daniel's loves dogs and appreciates a good joke as much as anyone. But Jack Daniel's likes its customers even more, and doesn't want them confused or associating its fine whiskey with dog poop.
TOTENBERG: VIP's lawyer, Bennett Evan Cooper, has a terse reply.
BENNETT EVAN COOPER: Freedom of speech begins with freedom to mock.
TOTENBERG: And, he says, Jack Daniel's misses the point when it equates the Bad Spaniels toy with knockoffs like marijuana-laced Oreos marketed as Stoneos.
COOPER: There is no bottle of dog poo being sold. It's a pretend trademark on a pretend label for a pretend bottle full of pretend contents. The entire thing is a parody.
TOTENBERG: Jack Daniel's brief goes on for pages about Jack's history and its trademarked name, which, quote, "appeals to whiskey drinkers from bikers to bankers and is, today, the most valuable spirit brand in the world."
(SOUNDBITE OF SONG, "JACK DANIELS")
MIRANDA LAMBERT: (Singing) I fell in love with Jack Daniel's again. He's the best kind of lover that there is.
TOTENBERG: The brief waxes poetic about the iconic status of Jack Daniel's, noting that the brand is featured in countless movies, television shows, celebrity photos and songs.
(SOUNDBITE OF SONG, "JACK DANIEL'S, IF YOU PLEASE")
DAVID ALLAN COE: (Singing) Jack Daniel's, if you please, knock me to my knees. You can kill this pain.
TOTENBERG: The Jack Daniel's company argues that it licenses its trademark to preserve its reputation, including licensing dog collars and leashes. It contends that the lower court was wrong to conclude that the Bad Spaniels toy was a humorous and expressive work and thus immune from claims that it infringed on Jack Daniel's trademark. Supporting Jack are the Chamber of Commerce and the National Association of Manufacturers. Their lawyer, Gregory Garre, was willing to talk about why his clients are worried about this case.
GREGORY GARRE: The concern here is that producers could confuse consumers and ultimately dilute brands that companies have invested millions and, in some case, you know, billions in preserving over time.
TOTENBERG: Or, as Jack Daniel's brief puts it, if the lower court ruling is allowed to stand, anyone could use a famous trademark to sell sex toys, drinking games or marijuana bongs. Lawyer Cooper, representing the dog toy company, counters that consumers are not confused by the Bad Spaniels toy.
COOPER: The source of the confusion here is not that people think that this product comes from Jack Daniel's, but the misimpression, which hopefully we can clarify in this lawsuit, that you need the permission of somebody to parody them.
TOTENBERG: The Supreme Court in modern times has been quite protective of parody. In 1994, the court ruled unanimously in favor of 2 Live Crew, a rap group that parodied the song "Oh, Pretty Woman" with raunchy lyrics. That case, though, involved the fair use of a copyrighted song, and this case involves federal trademark statutes. The whiskey company claims that the imitation Bad Spaniels vinyl bottle has appropriated the iconic Jack design for just one purpose - to sell a chewy dog toy. And by doing that, the company claims, Jack's property rights have been infringed, even if the chewy dog toy is expressive.
(SOUNDBITE OF SONG, "I DRINK ALONE")
GEORGE THOROGOOD AND THE DESTROYERS: (Singing) Yeah, the other night, I lay sleeping, and I woke from a terrible dream. So I called up my pal Jack Daniel and his partner Jimmy Beam.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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