Samuel Koenig ,left, and Warren Braunig,right, of Keker Van Nest & Peters. Courtesy photos Can't You Take a Joke? Parody Products and Trademark Law in the Wake of the 'Jack Daniel's' Decision
Looking ahead, the First Amendment may be less and less important in trademark cases, according to Keker, Van Nest & Peters' Warren Braunig and Samuel Koenig.
July 03, 2023 at 05:03 PM
7 minute read
Last month, in a case "about dog toys and whiskey," the Supreme Court weakened—but did not eliminate—First Amendment protections for parody use of others' trademarks (Jack Daniel's Properties v. VIP Products,— U.S. —, No. 22-148 (2022)).
VIP Products sells "Silly Squeakers," a line of dog toys designed to resemble liquor bottles but with, in the words of the U.S. Court of Appeals for the Ninth Circuit, "dog-related twists." One Silly Squeaker was the Bad Spaniels toy, which took the shape of a square bottle with a label reminiscent of the Jack Daniel's label. But where the Jack Daniel's label refers to "Old No. 7 Tennessee Sour Mash Whiskey" and "40% alc. by vol.," Bad Spaniels is referred to as "The Old No. 2 On Your Tennessee Carpet" and touts that it is "43% poo by vol." and "100% smelly."
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