Oral argument today.
Here's Ronald Mann, at SCOTUSblog, with "Dog toy poking fun at Jack Daniel’s leads to dispute over parody exception to trademark protections":
Because it is a parody, [the toy maker] contends, traditional rules about likelihood of confusion are largely irrelevant – the parody wouldn’t work unless users associated it with the mocked brand. From that perspective, the 9th Circuit’s “heightened scrutiny” test makes perfect sense, because it leaves the necessary space for parodic comment on “iconic alcohol brands’ self-serious bombardment of consumers with advertising.”... I suspect that at the end of the day a large group of justices will have little sympathy for the notion that the First Amendment compels protection for a parody likening Jack Daniel’s to canine excrement.
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35 comments:
Glad to see we're working on the big issues. That this couldn't have been settled at some level below the SC is amazing.
I’m confused by the part in the quote after the elipses, is he saying the court is likely to rule in favor of Jack Daniels?
Yes it's technically infringement, but how does hurt the Jack Daniels brand when there is a minute chance of causing confusion to consumers?
Parody? Under the 8th Circuit Mutant of Omaha case, that bottle infringes.
If I were Jack Daniels, I would drop the case if the toy company agreed to alter the word "Tennessee" on their label. First, it makes no sense -- do they only sell the toy in Tennessee?, and secondly the location is very integral to the Jack Daniels brand identity.
Old No. 2
That brightened my coughy sneezy morning.
I do not drink Jack Daniels or any Tennessee whiskey, so I have no dog in this hunt (or on this particular carpet) but I'd advise the owners of that liquor brand to STFU and enjoy the free brand promotion. If I thought Jack Daniels was distilled by people with a sense of humor, I might just sample their demon juice, perhaps I'd even give up absinthe in favor of that peppery fusel grease.
Oh, please. Nobody's going to confuse them.
...parody likening Jack Daniel’s to canine excrement.
Correction: The parody product is presented as an oral fixation of a "Bad Spaniel" who has a penchant for pooping on the rug.
What reasonable consumers are likely to be confused as to the source origin sponsorship or affiliation between this dog toy maker and the company making bourbon?
Go to a pet store and you will see lots of parody dog toy merch. Nobody is tricked, and no trademark owners are harmed.
Ronald Mann's attempt to work the dog poop angle should persuade nobody.
Interesting to focus on the label.
The bottle shape is probably (I would think) trademarked as well.
It is clearly parody and I have no opinion of the legality of such things.
But I can't imagine it harming the Jack Daniel's brand.
Remember these?
As a 90s court room drama tv show would say… I’ll allow it.
At a time when the executive branch is trying to find ways to “partner” with institutions to restrict speech in the social networks, the supremes should send a signal that it intends to go the way and allow for more freedom of expression, not less.
Have Jack Daniels consulted Barbra Streisand?
The Simpsons invented Duff Beer, and then many real Duff Beers were born:
https://en.wikipedia.org/wiki/Duff_Beer
Mattel sued MCA Records over the Barbie Doll parody "Barbie Girl"
https://en.wikipedia.org/wiki/Mattel,_Inc._v._MCA_Records,_Inc.
Mattel lost. Jack Daniels will lose IMO.
We must be a very contented people if this got to the Supreme Court. Although it is a good thing that every dog(toy) has its day.
I'm so happy to see all these lawyers delegating their time to such worthy public causes, and doing it in front of the Supreme Court, since they have nothing better to do.
I support the dog toy in this case. It's not a rival alcohol, not even a liquid.
As a more general comment, lots of cultural icons are finally losing their copyright protections. Even Mickey Mouse is coming up soon, and Disney is probably not going to be able to get the time limit extended again.
Given the damage the woke crowd has been willingly inflicting on such icons recently, there will be little room for complaint.
Can't tell you how many times my dog has tried chewing through a bottle of Jack Daniels....
Thank God the Court has time to decide cases such as this dealing with matters of critical importance to the Nation, and has the wisdom to decline to consider cases dealing with trivial topics such as the integrity of the 2020 presidential election.
During a local radio broadcast, the presenter said that Jack Daniel's main objection was that the toy would create an association between Jack Daniel's Old #7 with dog poop. Immediately, my mind sprung to a joke, based on my preference for Bourbon over Jack (they are not the same): "Serious Bourbon drinkers don't need a dog toy to associate Jack Daniels with dog poop."
It's just a joke
I have a relative who is a trademark attorney.
It can be an extremely lucrative field if you have the right clients. In this case, the trademark attorneys will make a fortune from Jack Daniels, win or lose.
Jack Daniels will get publicity from the case and increase sales.
"The main difference is that instead of describing..."
Pardon me but I believe that the "main difference" is that it is a chew toy and has no whiskey in it.
"I suspect that at the end of the day a large group of justices will have little sympathy for the notion that the First Amendment compels protection for a parody likening Jack Daniel’s to canine excrement."
Especially if they have had Jack Daniels.
Typically trademark parody cases win when the class of goods is dissimilar. If they were making an energy drink, for example, they would almost certainly lose. Booze and dog treats are substantially different so my guess is that it will be found to be a parody. These cases are often brought to price the parodists out of the market. Starbucks, Nike and Louis Vuitton have gone down in flames on similar claims. Who knows how often big companies win with just a cease and desist letter because there's no money to defend.
What makes this more interesting is the trade dress around the mark itself, bottle shape, black label, decorative framing of the mark itself. Will the court consider more than just the Mark? And for all I know the bottle shape and other features may be registered trademarks as well.
Good luck to all parodists.
"...I suspect that at the end of the day a large group of justices will have little sympathy for the notion that the First Amendment compels protection for a parody likening Jack Daniel’s to canine excrement." So the case will be decided on whether the justices find the parody excessively disgusting? Like to see the male / female breakdown on that.
"As a more general comment, lots of cultural icons are finally losing their copyright protections. Even Mickey Mouse is coming up soon, and Disney is probably not going to be able to get the time limit extended again."
Every time I'm reminded of Disney's pigheaded obsession with its supposed perpetual exclusive rights to the form of an anthropomorphic rodent, I'm reminded of this Communist ripoff standing forlornly in the Chernobyl exclusion zone.
It looks like copyright infringement.
It should be noted there's an affirmative duty on the part of trademark holders to "police" their trademarks. So it's hard to say JD's actions are frivolous.
Reminds me of the North Face/South Butt dispute ... except they were marketing the same product.
As a more general comment, lots of cultural icons are finally losing their copyright protections. Even Mickey Mouse is coming up soon,
Word of warning, only the Steamboat Willie iteration is coming off copyright - the more modern iteration of Mickey remains protected (and trademark law arguably protects Mickey even after the copyrights expire).
From the brief of Jack Daniels, Inc.
"Mut. of Omaha Ins. Co. v. Novak, 836 F.2d 397, 398, 401 (8th Cir. 1987) (“Mutant of Omaha” design confusingly similar to Mutual of Omaha’s trademark); Anheuser-Busch, Inc. v. VIP
Prods., LLC, 666 F. Supp. 2d 974, 986 (E.D. Mo. 2008) (“ButtWiper” dog toy confusingly similar to Budweiser’s bottle label, dress design, and trademark)."
The Mutant of Omaha case was big in Omaha!
Isn't the argument really about "dilution" of a famous brand? The law protects a famous brand from dilution without consideration of whether or not there is a likelihood of consumer confusion. There is a remote dark alley of a test that tries to determine if the parodic use of the mark explicitly misleads folks as to the source of the parody. That's probably not the only consideration in this case.
- Krumhorn
Quaestor said:
I'd advise the owners of that liquor brand to STFU and enjoy the free brand promotion.
Concur. I can't see an upside to pursuing this, especially at the Supreme Court level. It's going to generate bad feelings towards the brand in a lot of people. (I have zero data to back this up, but I'm guessing a lot of people who drink American whiskeys are dog people.)
Quaestor said:
I'd advise the owners of that liquor brand to STFU and enjoy the free brand promotion.
Concur. I can't see an upside to pursuing this, especially at the Supreme Court level. It's going to generate bad feelings towards the brand in a lot of people. (I have zero data to back this up, but I'm guessing a lot of people who drink American whiskeys are dog people.)
If I thought Jack Daniels was distilled by people with a sense of humor, I might just sample their demon juice,
=========
on the question of humor let me present evidence of absence >>>
it is illegal to imbibe in the TN county where they 'brew that is true'
I, for one, look forward to the McD's parodies, like a squeaky dog toy of a dog poop on a bun.
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