January 24, 2023

Jack Daniels v. VIP Products: Iconic Whiskey Battles Dog Toy

Intellectual property cases can be very dry affairs entailing sleep-inducing levels of complexity for the uninitiated, but Jack Daniel’s Properties, Inc. v. VIP Products LLC, headed to Supreme Court arguments this season, represents a dispute everyone can understand. On one side is the venerable Tennessee whiskey dating back to 1864, according to official company history. In 1866 the Jack Daniel’s Distillery became the first registered distillery in the US. Today Jack Daniel’s is said to be the top-selling American whiskey in the world.

On the other side is VIP Products, makers of dog toys, specifically vinyl Silly Squeakers™, designed to resemble familiar products. The imitation that Jack Daniel’s found objectionable is a red squeaky toy resembling a bottle of Jack Daniel’s and labeled “Bad Spaniels,” “The Old No. 2,” “on your Tennessee carpet” with a drawing of a dog face with a guilty expression. It’s a dog defecation joke inside a parody of the well-known Jack Daniels bottle. Other similar Silly Squeakers™ products include “Smella Arpaw” (imitating Stella Artois), “Hens-r-messy” (Hennessey), and “Pissness” (Guiness).

Jack Daniel’s has consistently sought and secured extensive protection for its trademarks which include more than just the name of the product or even the distinctive square-shaped bottle. The company, now owned by Brown-Forman Corporation, also has a registered trademark for the script and configuration of the label design. Jack Daniel’s argues in its petition that “VIP’s profit-motivated ‘joke’ confuses consumers by taking advantage of Jack Daniel’s hard-earned goodwill.” Campbell’s Soup, Levi Strauss and Constellation Brands (Corona, Robert Mondavi, Svedka) have all filed briefs supporting Jack Daniel’s position, as have trade groups representing spirits, wine and beer.

The district court sided with Jack Daniel’s while the Ninth Court of Appeals reversed that decision, ruling that the “Bad Spaniels” toy was an expressive work used to convey a humorous message and thus entitled to First Amendment protection.

When argued, the case should attract a lot of attention—a lighter note among all the Supreme Court’s solemn cases—but possibly with important implications for trademark protection.

Related Team:

Jay Yates


W. Bruce Patterson

Partner, Practice Head