The Supreme Court unanimously sided with Jack Daniel’s Thursday in its bid to hold a dog toy company accountable for a poop-themed parody of its product.
Rejecting the Ninth Circuit’s decision that the parody was an “expressive work” entitled to First Amendment protections, the Supreme Court held that “a mark does not count as noncommercial just because it parodies, or otherwise comments on, another’s products.” Justice Elena Kagan wrote the opinion for a unanimous court.
“This case is about dog toys and whiskey, two items seldom appearing in the same sentence,” she began. (RELATED: ‘What Is The Parody Here?’: Supreme Court Appears Divided On Iconic Whiskey Maker’s Suit Against ‘Poop’-Themed Dog Toy)
The US Supreme Court is seen in Washington, DC, on May 4, 2020, during the first day of oral arguments held by telephone, a first in the Court’s history, as a result of COVID-19, known as coronavirus. (Photo by SAUL LOEB / AFP)
“We hold only that it is not appropriate when the accused infringer has used a trademark to designate the source of its own goods—in other words, has used a trademark as a trademark,” Kagan continued. “That kind of use falls within the heartland of trademark law, and does not receive special First Amendment protection.”
At the heart of the case is a “Bad Spaniels” dog toy parody of Jack Daniel’s Old No. 7 Tennessee Sour Mash Whiskey, which mimics the bottle’s shape and design, changing the subtitle to “The Old No. 2 on your Tennessee Carpet.”
Jack Daniel’s wrote its brief filed with the court that it did “not want its customers looking at their whiskey bottles and wondering why in the world Jack Daniel’s is talking about dogs defecating on Tennessee carpets.”
During oral arguments in March, Justice Elena Kagan asked the lawyer arguing for VIP Products to explain the joke.
“What is the parody here?” she asked. “Maybe I just have no sense of humor.”
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