Not So Punny After All? Parody After the Supreme Court’s Jack Daniel’s Decision

Earlier this year, one of my colleagues posted a guide to parody under U.S. trademark law for those brands hoping to navigate trademark parody without crossing into trademark infringement or dilution. But as we all know, the legal landscape can change in just a few months, especially when the Supreme Court gets involved. In this post, we explore the Court’s recent decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC and discuss what, if anything, it changes for brands navigating that parody tightrope. (Spoiler Alert: Not that Much.)

For those unfamiliar, VIP Products makes a “Bad Spaniels” poop-themed dog toy designed to look like a bottle of . . . you guessed it . . . Jack Daniel’s whiskey. Unamused, Jack Daniel’s demanded VIP Products stop selling the toys, and the parties became embroiled in years-long litigation with Jack Daniel’s claiming infringement and dilution of its trademarks and VIP Products crying parody. While Jack Daniel’s was victorious in the district court, the joke seemed to have landed on more humorous ears in the Ninth Circuit, and the Court held that the “Bad Spaniels” toy was an expressive work warranting heighted First Amendment protection from trademark infringement claims. On the dilution issue, the Court found that the humorous nature of the product rendered the toys “non-commercial” and thus exempt from the dilution claim.