Litigation Update: Jack Daniels V. Bad Spaniels. Is It Parody or Is It Trademark Infringement?

March 30, 2023 Alerts and Newsletters

This week the U.S. Supreme Court will hear argument in the case, Jack Daniel’s Properties Inc. v. VIP Products LLC, U.S. Doc. No. 22-148, to decide the question: Can we do that?

It’s been said a picture is worth a thousand words, so here it is:

Lawyers from across the country have devoted thousands upon thousands of words trying to convince the court how to answer the question. (From my count, besides the parties’ involved in the case, an additional 23 different entities filed amici curiae briefs with the Supreme Court.)

The Issue:

Does the Bad Spaniels’ product (a plush dog toy not a bottle of booze) infringe upon the intellectual property of Jack Daniel’s?

The Arguments:

Yes it does. I love the opening line to Jack Daniel’s brief: “Jack Daniel’s loves dogs and appreciates a good joke as much as anyone. But Jack Daniel’s likes its customers even more, and doesn’t want them confused or associating its fine whiskey with dog poop.” In legalese, this translates to: the plush toy likely confuses consumers and therefore infringes upon Jack Daniel’s trademarks and trade dress and dilutes its famous marks.

No it doesn’t. First Amendment, parody, satire. Simply, in the “real world” there is no consumer confusion, the Bad Spaniels’ dog toy is a parody work of artistic expression and noncommercial speech.

The Law:

To prevail on a claim for trademark infringement, a plaintiff needs to show the “likelihood of confusion”, regardless of whether any consumers are actually confused. 4 McCarthy on Trademarks and Unfair Competition, § 23:12 (5th ed.).

A defendant’s intent (or lack of intent) to deceive or confuse the consumer is immaterial. McCarthy, § 23:107.

If the defendant’s use, however, is likely to cause consumer confusion, a Court must then look to the First Amendment issue, namely, the interest of free speech must be balanced against the interests protected by trademark law. Specifically, a Court must determine whether “the public interest in avoiding consumer confusion outweighs the public interest in free expression.” Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). The right of free expression is particularly important in the context of parody because “[p]arody needs to mimic an original to make its point.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580-81 (1994).


C’mon. Let the dogs play. Have we come so far that we think people can’t see a joke and that a company can’t take a joke and have a chuckle themselves? As recognized by Bad Spaniels in its Supreme Court brief, Reggie Jackson famously quipped, “Fans don’t boo nobodies.” Jack Daniel's – applaud the fact that you’re a somebody. You’ve very successfully influenced pop culture and were a pal to George Thorogood to keep him from drinking alone. From Austin Powers to Young Frankenstein, from Weird Al to SNL, parodies (when not mean spirited) are the part of contemporary society that keeps its funny bone intact.