The term “dog poop” echoed several times before the United States’ most esteemed Supreme Court on Wednesday, whose justices were baffled by the object presented to their wits: a canine toy that mimics the visual cues of Jack Daniel’s, the popular brand of whiskey. .
This chew toy, christened “Bad Spaniels” (Naughty Spaniel), is sold by the company VIP Products. It features the distinctive shape of the distillery’s square black-label bottles, complete with scatological jokes.
Where Tennessee whiskey has a 40% alcohol content, Bad Spaniels are made from “43%” dog poop and risk ending up on “Tennessee carpets”.
Alleging an attack on its image, the bourbon maker sued VIP Company in the name of trademark protection. After many twists and turns, the Supreme Court decided to take it up.
The case presents “important questions for the First Amendment” in the Constitution, the guarantor of freedom of expression, Justice Samuel Alito argued during the trial.
Nine sages must say whether diverting a brand for comic purposes falls within this right of expression and can therefore be considered an infringement of intellectual property norms.
AFP
VIP, which also sells counterfeit cans of “canine cola,” takes refuge behind the parody right that authorizes copyright infringements in the cultural sphere.
“We make fun of brands that take themselves too seriously”, his lawyer Bennett Cooper explained to the High Court.
Judge Elena Kagan was not convinced. “Maybe I have no sense of humor, but how can that be a parody?” she asked. “You’re saying that by definition, big business is taken very seriously…”
For Jack Daniel’s attorney Lisa Blatt, the question is whether parody is understood or whether it’s funny. But she pleaded that “it should be clear that the company with the registered trademark is not joking itself”.
AFP
However, in this case, she felt there was a risk of “confusion” among customers.
This time Samuel Alito expressed his doubts. Do you really believe that a reasonable person would think “this product is endorsed by Jack Daniel’s”? Pretend it’s full of urine and say “The CEO replies: That’s a great idea!”
“You went to law school, you’re smart, analytical…”, Lisa Blatt responded to me. “I went to law school and didn’t learn much law,” replied the judge. “But I have a dog, and I know a little about dogs…”
The High Court has to issue its decision by June 30.
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