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At the U.S. Supreme Court Wednesday, one side will be talking about its iconic liquor bottle as its valued trademark. The other side will be talking about parody and free expression. And both will be talking about dog poop.

Jack Daniel's, the famous Tennessee whiskey company, is trying to stop production and marketing of a chewy dog toy called Bad Spaniels. The toy, shaped and decorated like a Jack Daniel's bottle, features a spaniel and the name "Bad Spaniels" on the label instead of the iconic Jack Daniel's name. And instead of promising 40 percent alcohol by volume, it promises "43 percent poo by volume, 100 percent smelly."

The vinyl bottle is part of a line of chewy dog toys, called Silly Squeakers, which parodies other famous brands and is manufactured by VIP products, the country's second-largest dog toy manufacturer.

VIP's owner, Stephen Sacra, says he got the idea for the Bad Spaniels parody when he was out for dinner and found himself staring at the back of a bar, and the iconic Jack Daniel's bottle. On the spot, he took out his phone, called his graphics designer, "and I said, I got two words for you: Bad Spaniels."

Within 48 hours, they had the draft design for a new toy that is now the company's best-selling product in major stores across the country.

'Freedom of speech begins with freedom to mock'

Jack Daniel's whiskey is not amused. It has been trying, so far unsuccessfully, to stop VIP from selling the Bad Spaniels toy. On Wednesday, Jack's lawyer will tell the Supreme Court that the toy infringes on its trademark, confuses consumers and tarnishes its reputation. 

As it argues in its 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."

VIP's brief comes back with a terse reply: "Freedom of speech begins with freedom to mock."

Jack Daniel's "misses the point" when it equates the Bad Spaniels toy with knock offs like marijuana-laced Oreos marketed as "Stoneos," says VIP's lawyer Bennett Evan Cooper. "There is no bottle of dog food being sold. It's a pretend trademark on a pretend label for a pretend bottle full of pretend content. The entire thing is a parody."

Jack Daniel's brief goes on for pages about Jack's history and its trademarked name, which "appeals to whiskey drinkers ... from bikers to bankers " and "is today the most valuable spirit brand in the world."

The brief waxes poetic about Jack's iconic status, noting that Frank Sinatra called it "the nectar of the gods," and was famously buried with a bottle. As the brief notes, the brand is featured in countless movies, television shows, celebrity photos and songs.

Indeed, the whiskey is something of a staple in country music laments, including songs by 

, who in her song "Jack Daniels" called it "the best kind of lover that there is." 

, who in "Jack Daniel's, If You Please," said it was "the only friend there has ever been that didn't do me wrong."

The Jack Daniel's company argues that it licenses its trademark to preserve its reputation, for instance licensing various dog products, including leashes, dog collars and a dog treat jar. The company contends that the lower court was wrong to conclude that the Bad Spaniels dog toy was a "humorous" and "expressive" work and thus immune from claims that it infringed on Jack Daniel's trademark.

If that ruling is allowed to stand, the company contends, anyone could use a famous trademark to sell sex toys, drinking games or marijuana bongs, while misleading customers and destroying billions of dollars in goodwill — all in the name of just having fun.

Some big legal guns have weighed in with friend-of-the-court briefs predicting economic doom if Bad Spaniels prevails. Former Solicitor General Gregory Garre, representing the U.S. Chamber of Commerce and the National Association of Manufacturers, argues that "giving businesses a free pass to capitalize on hard-earned trademarks ... would deeply destabilize an economic system that is rightly the envy of the world."

VIP's lawyer Cooper counters that consumers aren't confused by Bad Spaniels toys. "The source of the confusion here is not that people think that this product comes from Jack Daniel's, but the misimpression which hopefully we can clarify in this lawsuit, that you need the permission of somebody to parody them," he says.

The Supreme Court in modern times has been quite protective of parody. In 1994 the court ruled unanimously in favor of Two Live Crew, a rap group that parodied the song 

with raunchy lyrics and the same distinctive beat. And in 1988, the court, again unanimously overturned a $200,000 award to the Rev. Jerry Falwell for his emotional distress at having been parodied in the pornographic magazine 

. That decision, though, involved Falwell's status as a public figure, and the Two Live Crew case involved the fair use of a copyrighted song.

This case involves the federal trademark statutes and whether and when parody is protected speech. The whiskey company claims that the imitation Bad Spaniels bottle has appropriated the iconic Jack Daniel's design for just one purpose, to sell a chewy dog toy. And by doing that, the company claims, Jack's property rights have been infringed, even if the chewy dog toy 

VIP basically says Jack is full of ... poop. 

Business and Economic News

Crime, Law and Justice

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Nina Totenberg

Author

The whiskey maker argues that the toy named Bad Spaniel infringes on its trademark, confuses consumers and tarnishes its reputation.

Jack Daniel's tells Supreme Court its brand is harmed by dog toy Bad Spaniels

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