A legal battle over a squeaky rubber bottle of whiskey has been ensuing since 2014.

By Jelisa Castrodale
October 23, 2020
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For the past six years, Jack Daniel's has been involved in an intense legal fight against the manufacturers of, um, a squeaky dog toy. In 2014, the whisky company sent a cease-and-desist letter to VIP Products, the company that makes the Silly Squeakers line of pet products. The product that got Jack's attention was the "Bad Spaniels" toy, which is shaped like a bottle of its liquor and has a guilty-looking cartoon dog on its black label.

The parody doesn't stop there: the "bottle" of Bad Spaniels also swaps Jack's iconic "Old No. 7" and "Tennessee sour mash whisky" for the more dog-centric "Old No. 2" and "On Your Tennessee Carpet." As dumb as those jokes may be, Jack Daniel's and its parent company Brown-Foreman aren't exactly laughing about it.

Credit: monticelllo/Getty Images

After Jack Daniel's sent its original cease-and-desist, VIP Products responded with a lawsuit of its own. According to the Arizona Capitol Times, in the first case, a judge ruled in favor of Jack Daniel's, in part because 29 percent of consumers believed that Jack Daniel's was responsible for a dog toy that said it was "43% Poo By Vol."

VIP Products appealed the court's decision and the case went to the Ninth Circuit Court of Appeals. Judge Andrew Hurwitz sided with the squeaky toy, writing that it "communicates a humorous message using word play to alter the serious phrase that appears on a Jack Daniel's bottle." He ruled that it was clearly a joke, and not a serious (or deliberately misleading) use of the Jack Daniel's trademark.

And, because this back-and-forth will clearly continue until the earth crashes into the sun, Jack Daniel's has appealed that decision and wants to take this case to the U.S. Supreme Court. "Jack Daniel's has invested substantial resources into an image of sophistication,” the company's attorney Lisa Blatt said. “Accordingly, Jack Daniel's has a strong interest in protecting its trademarks and trade dress from association with juvenile bathroom humor [...] In other words, because the court of appeals thought VIP Products’ notorious copying was funny, it held that the company has a First Amendment interest in confusing consumers into believing that Jack Daniel's sponsors a dog toy spotlighting poop."

Earlier this week, attorneys for the International Trademark Association (INTA) weighed in, and they believe that the Ninth Circuit "is far out of step” with its ruling, and that it "opens the door" to other companies creating their own questionable parodies of well-known alcohol brands which would be deemed acceptable as long as they're funny.

In its petition to the Supreme Court, Jack Daniel's said it wants a ruling about whether "a commercial product using humor is subject to the same likelihood-of-confusion analysis" that other, less funny trademark infringements are evaluated with.

This clearly isn't over yet, and may not be until Chief Justice John Roberts has to write the word "poop" in a legal decision.