Potty humor at whiskey legend’s expense gives high court a chuckle

The normally sedate Supreme Court broke into fits of laughter on Wednesday while reviewing a toymaker’s spoof on Jack Daniel's Tennessee Whiskey. 

Advertised as “The Old No.2 on your Tennessee carpet,” Bad Spaniels Silly Squeaker dog toy advertises “43% Poo by Vol.” and that it is “100% Smelly.” For Jack Daniel's, even the whiff of association to its Old No. 7 Brand was enough to begin litigation that landed on the high court steps this morning.

And while several of the justices took the opportunity to go off-leash, the domestic whiskey giant's point appeared to land as well.

“Maybe I just have no sense of humor,” Justice Elena Kagan said. 

Some of the justices seemed to agree with Kagan that Bad Spaniels shouldn’t get a pass for its use of the whiskey maker’s trademark, however, none of them appeared convinced to broadly reshape trademark law as Jack Daniel’s requested. Justice Sonia Sotomayor said she was hesitant to do away with the Rogers test — a framework for deciding cases that protects artistically expressive use of trademarks through the First Amendment. 

It appeared likely the court might decide the case on narrow grounds, but Justice Neil Gorsuch seemed to endorse another option. The Trump appointee said the Rogers test wasn’t ideal because it forced judges to evaluate art. 

“Judges make for pretty lousy art critics,” Gorsuch said. 

Goruch instead suggested sending the case back down to the lower court. This option would force a federal judge to review the case under the likelihood of confusion test — a multifactor test used to determine if a trademark use could possibly be confused. 

Justice Samuel Alito stood out in his opposition to Jack Daniel’s arguments. 

“A reasonable person would not think Jack Daniel’s approved this,” Justice Samuel Alito said of Bad Spaniels. 

Alito expressed concern about how the court’s ruling could impact the First Amendment. He disagreed with Jack Daniel’s that the toymaker’s speech should not be protected because it could possibly be misleading about the brand. 

“We would not have very much speech in this country if that was the case,” the Bush appointee said. 

Despite some justices' suggestion that the company narrow its arguments, Jack Daniel’s advocated for a broad ruling throwing out the Rogers test. Representing the brand, attorney Lisa Blatt said property rights inherently restrict speech. She said using the brand’s goodwill leads to confusion about what the brand represents. 

“Ha ha ha is not a standard,” said Blatt, who is with the firm Williams & Connolly. 

Blatt also noted more serious circumstances in which speech could harm brands. 

“What the other side and I don’t hear you guys talking about is the half of speech that no one likes: the pornography and the poison,” Blatt said. 

Bad Spaniels creator VIP Products said it has a First Amendment right to poke fun at Jack Daniel’s. 

“In our popular culture, iconic brands are another kind of celebrity,” said Bennett Evan Cooper, an attorney with Dickinson Wright representing VIP. “People are constitutionally entitled to talk about celebrities, and, yes, even make fun of them. Jack Daniel’s advertised in its self-serious way that Jack is everyone’s friend, and Bad Spaniels is a parody playful in comparing Jack to man’s other best friend.”

Cooper said artists should not have to face expensive and time-consuming litigation to express their free speech rights and warned the justices against creating burdens that would chill speech. 

The suit originated in 2014 when Jack Daniel’s attempted to force VIP to remove all Bad Spaniels toys from the market. Leaning on protections for speech under parody, VIP requested a declaratory judgment that its toy did not infringe on trademark rights. 

Ruling in favor of Jack Daniel’s, a federal judge said the toy should not be protected by the First Amendment because it is sold as a commercial product. A unanimous panel on the Ninth Circuit reversed, sending the case back to the district court where VIP's First Amendment protections prevailed. The Ninth Circuit affirmed on appeal, sending the case to the justices.