Supreme Court rules against dog toys that look like liquor bottles

That is the classic investigation in trademark cases. But Judge Kagan, when sending the case back to lower courts to analyze it, said the mockery of the chew toy with the liquor bottle had to feature in the analysis, as it wasn’t clear consumers would think Jack Daniel’s was responsible for a joke with toys. on it’s own.

Judge Samuel A. Alito Jr. made a similar point when the case was argued in March, imagining a pitch meeting with an executive from Jack Daniel’s.

“Someone from Jack Daniel’s comes up to the CEO and says, ‘I have a great idea for a product that we’re going to produce. It’s going to be a dog toy, and it’s going to be labeled a lot like our label, and it’s going to be called a lot like our name, Bad Spaniels, and what’s supposed to be in this dog toy is dog urine,” Judge Alito said, suggesting that consumers were unlikely to believe the chew toy had been produced or endorsed by the distiller.

Justice Kagan echoed the point in her opinion. “Consumers,” she wrote, “are less likely to think that the maker of a mocked product is mocking himself.” She added, “Self-contempt is one thing; self-mockery much less common.”

In a concurring opinion, Judge Sonia Sotomayor, along with Judge Alito, cautioned lower courts not to be too credulous in reviewing surveys, common in trademark litigation, “which purport to show that consumers are likely to be confused by an alleged infringing product. ”

Those surveys, she wrote, “may reflect a mistaken belief among some respondents that all parodies require permission from the owner of the parodied brand.”

In a letter from the Supreme Court in the case, Jack Daniel’s Properties v. VIP Products, No. 22-148, lawyers for the distiller wrote that “everybody likes a good joke.” But the chew toy, the briefing said, “confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill.”