Ruh-Roh! The Supreme Court Hears Arguments On If Rover's Crappy Toys Are Really A Free Speech Issue

Ruh-Roh! The Supreme Court Hears Arguments On If Rover's Crappy Toys Are Really A Free Speech Issue
Mar 2023

Ruh-Roh! The Supreme Court Hears Arguments On If Rover's Crappy Toys Are Really A Free Speech Issue
All dogs go to Heaven. Can't say the same for their toys though -- one in particular is caught in legal limbo with Jack Daniel's at the Supreme Court. And while this is not a joke, it is a silly case. Not silly as in frivolous -- it's just that a whiskey company suing a poop-punning dog toy company is a little batshit. Even the generally deadpan writers at Reuters couldn't resist barking up the pun tree.

U.S. Supreme Court justices on Wednesday sniffed around for a way to resolve a dispute over a dog toy parodying a Jack Daniel's whiskey bottle, though they clearly did not consider the case - exploring the boundary between creative expression and trademark infringement - an easy walk in the park.

The justices heard arguments in Jack Daniel's appeal of a lower court's ruling that the pun-laden "Bad Spaniels" vinyl chew toy sold by Phoenix-based VIP Products LLC qualifies as an "expressive work" protected by the U.S. Constitution's First Amendment. Jack Daniel's Properties Inc is owned by Louisville, Kentucky-based Brown-Forman Corp.

The real kennel, er, kernel of the case is getting the litigants to pin down the proper laws and tests that ought to govern the case. Initially, Jack Daniel's wanted to frame this as a freedom of speech issue. Justice Kagan thinks that that particular legal strategy may have already gone to the dogs:

"This is a standard commercial product," Kagan told a lawyer for VIP Products, Bennett Cooper. "This is not a political T-shirt, it's not a film, it's not an artistic photograph."

Kagan added: "You're using it as a source identifier. It seems like just not a First Amendment-Rogers kind of case."

The other justices have branched off with different questions to test if the litigants are barking up the wrong tree. For example, the lower courts applied the Rogers test to the fact pattern. Was it properly applied? Should another test have been used in its place?

"Could any reasonable person think that Jack Daniel's had approved this use of the mark?" Alito asked.


Lower courts ruled in favor of VIP Products after applying the so-called Rogers test - stemming from a dispute between actress Ginger Rogers and film director Federico Fellini. This test lets artists lawfully use another's trademark when doing so has artistic relevance to their work and would not explicitly mislead consumers about its source.

The justices expressed mixed sentiments about whether the Rogers test, arising from a 1989 case in which she sued over a Fellini movie, struck the right balance between a company's interest in protecting its corporate image against free speech protections.

To further complicate matters, the litigants aren't the only ones with a dog in this fight -- even the Biden administration has its paws in this case:

A lawyer for President Joe Biden's administration urged the justices to discard the Rogers test in favor of the more-rigorous multi-factor test normally used in trademark-infringement cases, which looks squarely at whether the acts would likely cause marketplace confusion.

This so-called likelihood-of-confusion test can adequately account for lawsuits involving parodies, Justice Department lawyer Matthew Guarnieri said.

Personally, I see the appeal of using the multi-factor test, but I also recognize that jurisprudence tends to be very stuck in its ways -- do I need to remind you how hard it is to teach a dog new tricks?

You get the gist of it. As the case develops and the justices choose which bones to pick, you know where to go for the scoop. Of kibble. That was a dog joke.

U.S. Supreme Court Chews On Jack Daniel's Fight Against Parody Dog Toy [Reuters]

Earlier: This Toy Company May Have Just Barked Up The Wrong Whiskey-Saturated Tree

A Free Speech Case Over A Dog Toy? Okay, I'll Bite.

Ruh-Roh! The Supreme Court Hears Arguments On If Rover's Crappy Toys Are Really A Free Speech Issue
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord(TM) in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.