March 22nd marked a legendary day in the history of Jack Daniels. It is a legendary brand and iconic label that has been imitated by everyone from Van Halen to summer carnies to professional fighters across the globe. Yet, it was a parody of their bottle as a dog toy that caught their attention.
Labeled “Bad Spaniels Silly Squeaker,” the red bottle squeaky dog toy is labeled with dog poop jokes, features the same black label with white lettering, and shares a similar shape to the bottle. Much like the Old No. 7 Brand Tennessee Sour Mash Whiskey” label on a bottle of Jack, the toy calls itself “The Old No. 2 On Your Tennessee Carpet,” marking one of the best dog poop jokes to date. They also moved on from the “40% ALC. BY VOL. (80 PROOF)” to the brilliant “43% POO BY VOL.” and “100% SMELLY.”
Even the tag attached to the toy proclaiming “not affiliated with Jack Daniel Distillery,” wasn’t enough to keep the company out of the courts.
The distillers of the iconic whiskey claim VIP violates federal trademark law, and the references to dog poop damage their brand as they believe there is potential for a consumer to mistake the toy for a product from the “oldest registered distillery in the United States.” In the court filings, the brand claimed, “To be sure, everyone likes a good joke, but VIP’s profit-motivated ‘joke’ confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill.”
Previously, a district court supported Jack Daniels and ruled that the product damaged their brand. Later, an appeals court overturned that ruling and sided with VIP Products. In their ruling, the court came up with a test to see if a potential infringement exists in non-commercial instances and if the protections should still be extended. There, the court ruled that VIP Products was non-commercial, and the work was done as a gag, and presented as an “expressive work,” thus providing first amendment protections.
This ruling is like ones concerning parody songs, covers, and artists re-imagining someone else’s work but with a comedic twist. This is why the flood of parody horror films from the late 90s was so successful.
By taking an iconic idea, making some fun of it, and turning out a unique but inspired idea, the VIP Products company believes they did nothing wrong. Given the difference in feel, size, color, and contents between Jack Daniels and this squeaky toy, the company should have little to no trouble winning the case.
Mark Sommers, a trademark attorney based in Washington DC, spoke with CNN about the case and the potential for this case to become legendary. Depending on how the ruling is written, it could “help define that line that exists between the First Amendment right of expression – be that parody, be that art, whatever you want to express – versus the important trademark issues that are here where brand owners who have invested a tremendous amount of goodwill don’t want their trademarks used in a manner which could result in potential confusion among the consuming public.”
However, Attorneys for Jack Daniels may have already dug their own grave in their filing. “No one disputes that VIP is trying to be funny. But alcohol and toys don’t mix well, and the same is true for beverages and excrement. The next case could involve more troubling combinations – food and poison, cartoon characters and pornography, children’s toys and illegal drugs, and so on.”
As made infamous by the biographical movie “The People Versus Larry Flynt,” Hustler magazine and Mr. Flynt were well within their rights to do a campaign about Rev. Jerry Falwell that parodied a Campari ad. No brand or person was too big to be made fun of. As the people for Jack referenced, the movie also touched on the idea of mixing a cartoon Santa with pornography in a humous depiction. That, too, is in fact legal.
The people of Jack Daniels are trying to grasp at straws because they haven’t thought of making Jack Daniels dog toys and now that ship has sailed. This is a frivolous suit, but it will make history.
