Mentions of a tipsy version of the Republican elephant logo, a famous pornographic movie and whiskey bottles (maybe) filled with dog urine made for lively Supreme Court oral arguments Wednesday over what is and isn’t trademark infringement.
The justices leaned on colorful and sometimes graphic examples as they grappled with the legal and constitutional implications of Jack Daniel’s Tennessee Whiskey’s attempt to take a dog toy off the market for spoofing its distinctive bottle.
Some questions to the lawyers tried to tease out when a parody would cause confusion among the public about who made the product — either Jack Daniel’s or a company making fun of the whiskey maker.
In one exchange, Justice Samuel A. Alito Jr. posited whether anyone would believe Jack Daniel’s made the “Bad Spaniels” dog toys, which includes a poop reference by subbing “Old No. 7” with “the Old No. 2, on your Tennessee Carpet.”
Alito, to illustrate the point, asked about the chances a Jack Daniel’s employee would make a pitch to the CEO that the distillery would make a dog toy that was a parody of the famous bottle with a similar label, a pun of the name and “purportedly in this dog toy is dog urine.”
“Do you think the CEO is going to say, ‘That’s a great idea, we’re going to produce that thing?’” Alito said.
Lisa Blatt, the attorney arguing for the distillery, responded that any such dog urine toys could create confusion among consumers. But her answer made it appear she was confused by Alito’s hypothetical product.
“If you’re selling urine, you’re probably going to win,” Blatt said, “but you’re probably also violating some state law.”
Alito clarified that he didn’t mean there would be actual dog urine in the product, just as the Bad Spaniels product at issue in this case didn’t actually contain dog excrement.
Lots of laughs
At that point and several other times during the nearly two hours of oral arguments, the courtroom burst into laughter as the justices and the attorneys sometimes cracked jokes.
Justice Sonia Sotomayor asked whether T-shirts of a political mascot acting drunk with the slogan “Time to sober up, America” could avoid a trademark lawsuit from the Democratic National Committee or Republican National Committee.
That made Blatt take note. “So, I mean, first of all, that’s funny, your example. I’m going to give you that,” Blatt said. The maker of those T-shirts could not avoid a challenge from the political organizations, she said.
Several justices appeared uncomfortable with the implications of a ruling in the distillery’s favor because the company asked the court to toss out a separate trademark infringement test for expressive works like movies and TV shows. The toy company argues that its design is covered by free speech protections of the First Amendment.
A central issue in the case is a decision from the U.S. Court of Appeals for the 9th Circuit, which found the dog toys from VIP Products passed what’s known as the “Rogers test,” which allows for expressive products to reference trademarks without being found to infringe on them.
The test comes from a 1989 case, Rogers v. Grimaldi, in which the U.S. Court of Appeals for the 2nd Circuit set a higher standard for trademark infringement for expressive works like movies. The Supreme Court has never weighed in on the Rogers test, and neither has Congress.
Miami and Dallas
Under questioning from Justice Elena Kagan, Blatt said the dog toys are trying to trade on the distillery’s fame and reputation in violation of trademark law, which doesn’t have an exception for jokes used to pass off look-alike products.
“‘Ha, ha, ha’ is not a standard under the Lanham Act,” Blatt said.
There are situations where a mocking product is obviously not going to confuse customers about its source, Blatt said, such as a “Miami Mice” T-shirt. But Blatt told the justices that allowing the dog toy to squeak past a trademark lawsuit could open the door to broader infringement in less wholesome products — like the Dallas Cowboys cheerleader uniforms used in the “Debbie Does Dallas” porn film.
“So the other side wants to talk about the uses they like,” Blatt said. “They don’t want to talk about the pornographic and poisonous things that could be done when you infringe someone’s trademark.”
Later in the arguments, Kagan said the dog toys are “leagues away” from the kind of protections offered for movies and TV shows — and that she didn’t get the joke.
“Maybe I just don’t have a sense of humor, what is the parody?” Kagan said.
Bennett Cooper, arguing for the dog toy company, said they are lampooning companies that take themselves too seriously, and “Jack Daniel’s would be head of the line.”
Cooper said if the justices don’t want to keep the Rogers test as is, they could adopt another standard that preserves the public’s ability to “punch up” with parody.
The justices are expected to rule in the case by the conclusion of the term at the end of June.
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