SCOTUS Agrees to Engage in Some Whiskey Business | Fox Rothschild LLP

On Monday, November 21st, the U.S. Supreme Court agreed to hear an appeal filed by Jack Daniel’s. In this appeal, Jack Daniel’s argued that the Ninth Circuit erred by upholding the lower court’s grant of summary judgment to VIP Products LLC in a trademark infringement case. Jack Daniel’s is a widely recognized Tennessee Whiskey brand which has been around for many years. VIP Products LLC is the creator of the “Bad Spaniels” dog toy squeaker which closely resembles the famous Jack Daniel’s bottle.

In its 2020 decision, the Ninth Circuit stated that the “Bad Spaniels” toy is covered by the First Amendment, which makes it extremely difficult to sue for trademark infringement. VIP views the “Bad Spaniels” dog toy, as an expressive work which communicates a humorous message by replacing the bottle’s “Old No. 7” phrase with “Old No. 2.”

Jack Daniel’s argues that despite VIP’s “joke”, VIP’s dog toy confuses consumers and takes advantage of Jack Daniel’s hard-earned goodwill. Jack Daniel’s disagreement is not with the Ninth Circuit’s rulings, but rather Jack Daniel’s takes issue with the balance that Congress and the courts have struck between trademark rights and First Amendment rights. An amicus brief, which supports Jack Daniel’s position, stated that the view of the Ninth Circuit would threaten trademark owners’ ability to police their marks and protect consumers. On the other hand, VIP urges SCOTUS to fashion a clear standard that will allow for some breathing room for parodies and reconcile trademark protection with First Amendment values. SCOTUS now has the opportunity to clarify the law. If you are interested in following the outcome of this case, it is Jack Daniel’s Properties Inc. v. VIP Products LLC, case number 22-148.

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