US Supreme Court’s dog toy ruling puts parody products on notice – Reuters

June 12 (Reuters) – The U.S. Supreme Court handed brand owners a win against parody products on Thursday when it ruled that “Bad Spaniels” dog toys resembling Jack Daniel’s whiskey bottles are not shielded by the U.S. Constitution from the liquor maker’s trademark lawsuit.

The decision is likely to force companies to toe a more careful line when making commercial products that mimic other brands for the sake of parody, legal experts said.

VIP Products had argued that the First Amendment protected its toys’ poop-themed variations on Jack Daniel’s famous label and bottle design, which it described as commentary on alcohol brands’ “self-serious bombardment of consumers with advertising” and dog owners’ “joyful humanization of their pets.”

But in a 9-0 decision, the justices said a precedent known as the Rogers test for assessing the use of trademarks in artistic expression did not apply to VIP’s products, reversing a U.S. appeals court and raising the bar for parodies to survive trademark claims. . . .

Elizabeth Brannen, a partner at Stris & Maher, said Jack Daniel’s victory “could turn out to be pyrrhic.” The whiskey maker will still have to prove VIP’s toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.

“The likelihood of confusion analysis will still take the challenged product’s funny message into account,” Brannen said. She noted that the high court said consumers are “not so likely to think that the maker of a mocked product is itself doing the mocking.”

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