One is a dog chew toy. The other is a glass bottle of liquor. If you can't tell the difference,
you should not buy either product, or always buy both.
you should not buy either product, or always buy both.
So Jack sued.We've seen roughly a zillion trademark disputes and cases in the alcohol industries, but perhaps nothing quite like this. Jack Daniels, the famous liquor company, found itself in a prolonged court battle with VIP Products LLC. At issue? Well, VIP makes a doggy chew toy that is a parody of Jack Daniels' famous whiskey bottle and trade dress.
...while the toy isn't exactly similar to the Jack Daniels bottle, it's a clear homage or parody of it. Parody, of course, has space carved out for it by the First Amendment. While trademark law might lead one to see a problem here, it's the fact that even this commercial product is expressive parody that keeps it from being trademark infringement.
The Jack Daniels folks didn't agree.
Back to Tech Dirt:
...the court held that, as a threshold matter, the Rogers test needed to be applied. Under that test, a trademark infringement plaintiff must show that the defendant’s use of the mark either (1) is “not artistically relevant to the underlying work” or (2) “explicitly misleads consumers as to the source or content of the work.” Id. at 9 (quoting Gordon, 909 F.3d at 265). The Ninth Circuit vacated the district court’s finding of infringement and remanded for a determination, in the first instance, of whether Jack Daniel’s can satisfy either element of the Rogers test.
It seems damn near impossible to imagine any scenario in which Jack Daniels manages to satisfy the Rogers test. And the real question is why it felt any of this expensive litigious adventurism was necessary in the first place.The short story: Jack lost. Good!
Why the corporate brain trust at Jack decided to move forward with this case is nothing short of mind-boggling. Can the PR/Ad/Legal Team at JD be so unimaginative, humorless and petty?
Could it have been that hard for JD to partner, in some way, with Bad Spaniels for a co-branding promotion - maybe buy a bottle of JD and get a Bad Spaniels chew toy? This is PR and Advertising, not brain surgery.
A Toast and Cheers to Bad Spaniels! Who's a good dog? Who's a good dog?
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