The Supreme Court heard oral arguments on whether a dog toy that looks like a bottle of Jack Daniel’s is infringing on the company’s trademark. The Straight Arrow News report on the substance of the case can be found here. The hearing was filled with lighthearted exchanges between the justices and attorneys.
VIP Products, which makes the dog toy, argued it’s a parody of Jack Daniel’s in the same way SNL does parodies of celebrities.
“Maybe I just have no sense of humor. But what’s the parody?” Justice Elena Kagan said, prompting laughter from the entire chamber.
“Your friend, or your amica I should say, the federal government’s about to get up. But I’m not sure how much of a friend they really are to you,” Justice Neil Gorsuch said.
“I agree,” Lisa Schiavo Blatt, the attorney for Jack Daniel’s, said.
Like all oral arguments, the justices used hypotheticals to put lawyers’ arguments to the test. Justice Samuel Alito made a hypothetical in which the CEO of Jack Daniel’s approves a dog toy that looks like urine in a bottle. The company’s lawyer took it literally.
“I think if you’re selling urine, you’re probably going to win on a motion [to dismiss], but you’re probably also violating some state law. But sure,” Blatt said.
“No, no, you’re not selling urine. It’s exactly this toy, which reportedly contains some sort of dog excrement,” Alito said.
“I’m sorry. Okay, my bad… well, just showing how confused I was suggested that I would be your perfect consumer. Justice Alito, you went to law school, you’re very smart, you’re analytical, you have hindsight bias,” Blatt said.
“Well, I went to law school where I didn’t learn any law,” Alito responded.
Justice Sonia Sotomayor made another hypothetical about political trademarks. She asked whether it would be okay for a political activist to make a t-shirt of a political party’s trademark, like an elephant or donkey, and make it appear drunk.
“Accompanied by a slogan, it’s time to sober up America,” Sotomayor said.
“So I mean, first of all, that’s funny, your example. I’m gonna give you that,” Blatt responded.
To explain his arguments, Bennett Evan Cooper, the attorney VIP Products, made multiple references to poop.
“Because there is no product, there is no bottle of poo. It’s simply making a joke,” Cooper said.
Later Cooper added, “We’re not selling a bottle of diluted dog poo, which is the subject of the parody that they’re complaining about.”
