Washington lawyer Lisa S. Blatt’s argument at the Supreme Court began as they all do: “Mr. Chief Justice, and may it please the Court.”
From there it was a blizzard of hypotheticals and assertions: references to pornography and sex toys, stirring defenses of fine photography and First Amendment rights, a dig at a famed law school and one justice’s admission that — if recasting the whiskey’s famous square bottle as a rubbery, squeaky chew toy was satirical, as its maker, VIP Products, claims — she was missing the joke.
“Maybe I just have no sense of humor,” Justice Elena Kagan began (although it appeared she did not think that was the case), “but what’s the parody?”
In the end, it seemed the court was not particularly pleased with the broad trademark protection arguments by Blatt, representing Jack Daniel’s; nor the artistic expression theory of Bennett E. Cooper, representing VIP Products; nor Matthew Guarnieri, presenting the federal government’s more middle-of-the-road approach.
The justices appeared likely to send the case back to lower courts for additional work. What guidance the Supreme Court would supply about policing the line between trademark protections and free-speech rights remained unclear.
According to Cooper’s briefs, VIP Products owner Steven Sacra had the idea of adding a parody of Jack Daniel’s to his line of dog toys aping other beverages, among them Corona beer and Mountain Dew. “Bad Spaniels” faithfully recreates the whiskey’s distinctive black label. But instead of “Old No. 7 Tennessee Sour Mash Whiskey,” the toy declares “Old No. 2 on your Tennessee carpet.” According to its label, Bad Spaniels’s is “43% POO BY VOL.”
Jack Daniel’s was not pleased with the homage, and told VIP Products to stop. A district court ruled for the whiskey company. But the U.S. Court of Appeals for the 9th Circuit reversed, saying the lower court did not take into account the parodic nature of the product. The appeals court judges relied on a rule sprung from a dispute involving Ginger Rogers over a Federico Fellini film, and said Bad Spaniels is “an expressive work entitled to First Amendment protection.”
On Wednesday, some justices thought that was a stretch. “This is not a political T-shirt. It’s not a film. It’s not an artistic photograph. It’s nothing of those things,” Kagan told Cooper. She added later: “A dog toy, I’m just going to say, is a utilitarian good.”
Cooper responded that the toy could also be considered a “soft sculpture” and part of a collection. The satire was making fun of a company that takes itself too seriously, he said.
Kagan listed some of VIP Products’s items: “Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, Mountain Drool. Are all of these companies taking themselves too seriously?”
Other justices thought Blatt and Guarnieri were downplaying the risks to free-speech rights, as several organizations had detailed in amicus briefs.
“Some of the hypotheticals and actual cases that are highlighted in the briefing in this case do seem to me to present serious First Amendment issues,” Justice Samuel A. Alito Jr. said to Guarnieri. “And you seem not to be very concerned about the free-speech implications of the position that you’re taking.”
Guarnieri said VIP Products should not get a First Amendment pass to make commercial products that are “likely to confuse consumers about the source of your goods or about the senior mark holder’s sponsorship or approval.”
When Alito said no reasonable person would believe that Jack Daniel’s would approve of Bad Spaniels, Blatt pointed to a survey of consumers that said about 30 percent believed just that.
“Justice Alito, I don’t know how old you are, but you went to law school, you’re very smart, you’re analytical, you have hindsight bias, and maybe you know something,” Blatt said before Alito jokingly cut her off.
“Well, I went to a law school where I didn’t learn any law,” said Alito, who like colleagues Clarence Thomas, Sonia Sotomayor and Brett M. Kavanaugh, attended Yale Law School.
Blatt said there is a darker side to the First Amendment argument that a company’s trademark rights must give way to parody. “They don’t want to talk about the pornographic and poisonous things that could be done when you infringe someone’s trademark,” she said, mentioning films and sex toys.
Some justices — Neil M. Gorsuch and Ketanji Brown Jackson, for instance — explored other ways for courts to determine when free speech and trademark protection were at odds. But it was difficult to determine where the court might come out.
For all the liveliness of the argument, several justices were uncharacteristically quiet. Chief Justice John G. Roberts Jr. asked only one question, while Kavanaugh and Justice Amy Coney Barrett asked none.
The case is Jack Daniel’s Properties v. VIP Products.