News Radio 700 WLW. All right back with Eddie and Rocky, and rock and roll. You know, when you think about the Supreme Court you think about, you know, freedom of religion, portion, all that crazy stuff is stuff that tears the nation asunder. And then you hear about stuff like this that they're trying to press through the Supreme Court. And you don't know that stuff happens, but it happens too.
So I guess the Supreme Court is getting ready to hear a case involving Jack Daniels who has taken a dog toy company to court claiming they make their dog toy look too much like a Jack Daniel's bottle. And yes, you're right. To think this is at the Supreme Court is mind boggling, but, but very true.
Well, let's talk to our good friend, the Patent Professor, John Rizvi—and, hey John, how does something like this—-it’s not before—-didn’t it get rejected once but they’re pressing it again, eh?
It did. Always a pleasure to be here, and couldn't have been for a crazier case than this. But I guess the intellectual property is getting more and more interesting, day by day. So they did, they're looking at the similarity. I mean, Jack Daniels, of course, is claiming that it's a dilution of their trademark rights. And the reason it's, you know, it's gotten all the way to the Supreme Court is there's essentially a need for guidance as to where the commerce clause, the, you know, the right for Congress to regulate commerce, where that stops and the First Amendment rights to free speech start. So that's, that's really what they're asking the court to assist with. I mean, the maker of the dog toy is claiming that it's expressive speech, and that the trademark rights are unfairly infringing on a parody. Essentially, this is a joke.
John, before we get ahead of ourselves, I don't think we explained that, that it's a dog toy shaped like a little Jack Daniel's bottle and it's the same labeling and such, but everything on there has to do with, like, your dog pooping on your rug and stuff.
Yeah, instead of old number seven brand Tennessee sour mash whiskey on the bottle. It says the old number two on your scent, on your Tennessee carpet.
It’s very tongue and cheek.
Bad Spaniels instead of Jack Daniels. Yes.
Yep, bad spaniels. And then instead of 40% alcohol by volume, it's 43% poo. Jack Daniels doesn't clearly does not think this is funny. They believe, you know, partly they're saying that consumers are not really—there's not a lot of reading of the text that people see the font, they see the shape of the bottle, the impression is the same and it you know, and it's confusing consumers. That's, that's part of their take.
So, John, to me that this is the big question. I don't think there's any question that this Bad Spaniels company made their toy purposefully to look like a Jack Daniels. If they claim otherwise, I don't know if they have any ground to stand on. But what, how much is, I mean, how much, how alike does it have to be? Is it, is it, is there a number amount? Well, three things are similar, five things, if it looked like the Jack Daniel's bottle but didn't have didn't make the label look quite the same. I just feel like there's got to be a tipping point of what's okay versus, okay, now you've gone too far, and you're making it look too much like our, in this case, Jack Daniels bottle.
Yeah, so unfortunately, there's, no there's no like, number or mathematical percentage or anything like that. It's—it comes down to consumer confusion like here. I don't think, I don't think—it's going to be really tough to show that consumers are actually confused. It looks—-nobody's going to try to drink from the dog toy. A similar case comes to mind where the Court held that it was a clear parody, and it's, it's very similar in the sense that it's also a dog toy, Chewy Vuitton. And it's a chewable dog toy in the shape of a purse. So and that was found not to be that not to violate any trademark rights. And you know, and to the extent as to why Jack Daniels is enforcing this or trying to to enforce it, a lot of, there's a duty on trademark holders to enforce their marks and to police them so to speak. And if they don't do that, then their rights become diluted, it makes it harder. So part of it might be that they're simply going through and trying to make sure that they take the appropriate steps to diligently try to protect their IP. It's, it's not I don't know, I don't have any, I've just run some informal surveys on on our own Patent Professor, social media pages, and it's almost 100% in favor of the dog toy, saying that Jack Daniels is needs to lighten up and get a sense of humor. So I think in the court of public opinion, it's certainly not to their benefit to push this.
And when you talk about parody, it wouldn't affect like, if Jack Daniels would win, say, when that effect, whatever, a TV show, what Saturday Night Live, does a fit commercial live with something like this? And couldn't they sue them? If it seems like this could just really Chase its tail for a while?
It does. And in fact, but you know, on the other hand, the concern is, if all a potential infringer has to do is, you know, be funny to get around someone's trademark rights, that's the opposite extreme—-that parody should not be be used to disparage a mark or kind of dilute the strength of a trademark. So it is a delicate balancing act that has to be done. Prior case law ties it to expressive expression. And, and, you know, the question is, is that, you know, the more it's a commercial product, the less the free speech aspects kick in. And if this is a little bit tougher than the earlier case, this is clearly a commercial product. It's not, it's not a movie, it's not a play. It's not, you know, somebody's doing the free speech in the, in the traditional sense of, of a parade or a public gathering where they're talking about it, this is a commercial product for profit. And the Supreme Court is going to help draw the line as to where that line is between a First Amendment right to free speech and to parody, and where trademark law prevents that. Because clearly there are restrictions on free speech. I mean, the constitutional right to free speech doesn't prevent a lot, it doesn't prevent hate speech, it doesn't allow someone to go into a theater and yell fire. There's restrictions on free speech, and whether the trademark rights and Lanham Act is going to kick in and prevent parody of trademarks, and how much?
Well, John, as you're describing this, I see both sides here, I see where, you know, the dog toy companies like, and probably other people are like, come on, you're Jack Daniels, you're this behemoth. They can even make the argument that it looks a little bit beneath Jack Daniels to go after a dog toy company. But I see the other side, which is they're saying, hey, if we continue to let this go on, what's next, then all of a sudden, we're, you know, people kind of see us as like a gag or I don't know, we're like a serious, you know, you know, tried and true American whiskey company here. You know, so I remember when we talked to you about Elvis, and it's like, okay, what's the big deal if someone wants to be an Elvis impersonator or, you know, do the wedding themed Elvis and all that. I remember you saying the family doesn't want the real brand of Elvis to be diluted. Could you not make the case that this is something similar with how Jack Daniels is handling this?
Well, that yes, certainly. I mean, they don't want their whiskey associated with dog poo so I can see.
You said it much more succinctly than I did.
Especially —- I mean, if they had to pick, if they were allowed to take a Sharpie and cross out anything on this label, I think the 43% poo would be one of the things that gets crossed out on it. But yeah, so that's, that's a big part of it. They're they're also claiming, and I think this may be a little bit far fetched that they're, you know, that it's an adult product whiskey, and that it's making it harder for them to not market to kids because pet toys are something kids play with and that kids are not going to be introduced to alcoholic beverages. It just seemed—that part just seems kind of bizarre. And in fact the dog toy company responded and said, you know, the only people that are really—if your, if your eight-year-old is recognizing a bottle of Jack Daniels whiskey as the dog toy, then he already knew about the whiskey, we're not—
Why is Fluffy drinking daddy’s special drink?
Exactly. So if your six or eight-year-old is making the connection, they already had made the connection prior to the dog toy, they knew about the Jack Daniels whiskey. So no, this is not—the dog toy is not promoting underage drinking or like any of these kinds of bizarre arguments that I've seen. But like I said, this is a strange case on all fronts, but an important case, because it's really going to determine the rights of trademark owners going forward and how strong protection they can get in stopping parodies, versus how much leeway being funny is going to allow, you know, commercial products. If the commercial product is funny enough, can you then basically parody anything and make a profit under the guise of free speech?
So with that, John, let's finish up with one last question. The obvious one is, do you see Jack Daniels winning this?
Well, I think they can, it would have to, they would have to tie it somehow specifically, very fact specific, because the big risk, I think in a case like this would be, you know, the impact on other trademark holders. So if they tie it really specifically to facts, that would be a possibility. Only because, you know, but it's I don't know, it's a tough call. Because I mean, if that's the case, then the Chewy Vuitton makes a pretty strong argument as well. You know, but they didn't, they didn't go all the way to the Supreme Court. So again, that’s the lower court—
See, I gotta say, I think Chewy Vuitton defeats Bad Spaniels. That's funny. John Rizvi, always a pleasure, buddy. Thank you so much. The Patent Professor. People want to find out more, where can they go? I do believe that is thepatentprofessor.com, is it not?
The website is thepatentprofessor.com. And we're everywhere on social media @ ThePatentProfessor, Instagram, Facebook, LinkedIn, Tik Tok. You name it.
All right, buddy. Thanks so much. Thank you.