A Dog Walks Into A Bar…

Persuaded, paraded, inebriated, and down
Still aware of everything life carries on without
‘Cause there’s one too many faces with dollar sign smiles.
/Whiskey Bottle, Uncle Tupelo

For decades, parody and trademarks have had a fraught relationship, particularly when it come to the interface between human brands and products for man’s best friend. Back in the 90s, the luxury chocolate maker Godiva sued over a dog treat named Dogiva. And some years later, the luxury clothier and luggage maker Louis Vuitton sued over a brand of dog treats called Chewy Vuitton. Godiva won. Vuitton lost.

Last week, the latest decision in this line of cases came down, finding that a dog toy shaped like the iconic Jack Daniel’s whisky bottle and bearing both the name Bad Spaniels and the scatological slogan “Old No. 2” did not infringe the venerable bourbon’s trademark rights in the Jack Daniel’s name, the square bottle shape, the black and white labeling, and the slogan “Old No. 7.”

The case turned on whether Bad Spaniels name and bottle were a transformative expressive homage to Black Jack and therefore protected by the First Amendment and its stringent expressly misleading standard, or whether it just was plain old trademark use, in which case the lesser likelihood of confusion standard applies.

The judge came down on the side of parody and free expression. Acknowledging that the Bad Spaniels name, motto, and packaging were a far cry from the Mona Lisa, the judge nonetheless concluded that the canine toy maker had produced an expressive work that did not warrant being relegated to the trademark doghouse. The court explained that “[a] work need not be the expressive equal of Anna Karenina or Citizen Kane” to be considered expressive; nor is a work “rendered non-expressive simply because it sold commercially.”

The decision is sure to add to the ongoing debate on whether punsters deserve punishment when they parody a famous brand not through a cartoon or story but by putting out a product with a humorous twist.

So, when happy hour rolls around Fido, Spot, Snoopy, and Scooby Doo can enjoy their own plastic libation as their best friends break out the Jack and Ginger or have their Tennessee sippin’ whiskey nice and neat. And in these days of Work at Home and sheltering-in-place, it’s always five o’clock somewhere.

The case is VIP Prods. LLC v. Jack Daniel’s Properties, Inc., No. 18-16012 (9th Cir. Mar. 31, 2020).