Copying something and passing it off as a joke barely counts as a parody. But a good parody subverts the public’s expectations and invites commentary on the source material.
For Jack Daniel’s, a dog toy manufacturer’s “parody” of the whiskey company’s iconic bottle was less affectionate in-joke and more a source of confusion.
The Supreme Court recently ruled in favor of Jack Daniel’s in a trademark violation case with VIP Products. VIP produces a dog toy called “Bad Spaniels Silly Squeaker,” designed to look exactly like a bottle of Jack Daniel’s “Old No. 7” whiskey but with unflattering labels and references to dog feces (i.e., “The Old No. 2”).
Jack Daniel’s initially ordered VIP to halt sales of the controversial toy in 2014. VIP responded by filing for a declaratory judgment claiming its use of the bottle design doesn’t violate trademark rights per the First Amendment. A federal court rejected VIP’s arguments because the toy was a product made for commercial sale. But a Ninth Circuit panel reversed the ruling, which brought the case back to the district court. Both the district court and an appeals court sided with VIP, culminating in Jack Daniel’s bringing the case to the country’s highest court late last year.
In its ruling, the Supreme Court recognized that VIP’s use of Jack Daniel’s bottle design is an effort to “parody” or “make fun” of the whiskey maker. But such a message matters when considering Jack Daniel’s complaints of possible confusion since consumers aren’t likely to believe that the manufacturer of a mocked product is itself doing the mockery.
While Jack Daniel’s won, VIP can still argue its case in the lower court.
When is a parody a trademark violation?
According to the American Bar Association, brand owners can accept a parody if it’s an implied compliment. This would mainly apply to famous brands that are more likely to be parodied and less susceptible to confusion. But if there’s a real risk of confusion and the joke behind the parody is too subtle, then a brand owner should consider filing a lawsuit.
Even if another company is “playfully” referencing a brand owner’s intellectual property, there could be some exploitation behind the move. Because of the complexity of such cases, brand owners should consider hiring an attorney that can protect their trademark rights in court.