The term “dog poop” has repeatedly echoed in the United States Supreme Court
The term “dog poop” resonated several times on Wednesday before the very venerable Supreme Court of the United States, whose judges seemed baffled by the object submitted to their sagacity: a canine toy that diverts codes visuals of the famous whiskey brand Jack Daniel's.
This chew toy, baptized “Bad Spaniels”, is marketed by the company VIP Products. It has the distinctive shape of the distillery's square black-label bottles, complete with scatological jokes.
Where Tennessee Whiskey boasts 40% alcohol, Bad Spaniels are – allegedly – made from “43%” dog poo and are likely to end up on “Tennessee carpets”.
Deploring an attack on its image, the bourbon manufacturer sued the VIP company in the name of the protection of registered trademarks. After several twists and turns, the Supreme Court decided to take it up.
The case presents “important questions for the First Amendment” of the Constitution, guarantor of freedom of expression, justified the magistrate Samuel Alito during the hearing.
The nine Elders must indeed say whether the misappropriation of a brand for humorous purposes can be considered as falling within this right to express oneself and therefore derogate from the rules on intellectual property.
VIP, which also sells fake cans of “Canine Cola”, takes shelter behind the right to parody, which authorizes breaches of copyright in the cultural sphere.
“ We make fun of brands that take themselves too seriously”, “who take themselves for cultural icons”, explained his lawyer Bennett Cooper at the High Court.
Judge Elena Kagan n didn't seem convinced. “Maybe I don't have a sense of humor, but how is that a parody?” she asked. “You're just saying that, by definition, big business takes itself too seriously…”
For Jack Daniel's lawyer Lisa Blatt, the question isn't understanding the parody or whether it's funny. But it must be “clear that the company with the trademark did not make the joke itself,” she pleaded.
Or , in this case, she felt, there is a risk of “confusion” among customers.
This time, it was Samuel Alito who showed his skepticism. “Do you really believe that a reasonable person would think that Jack Daniel's approved” this product? pretending it's filled with urine and “the CEO would say, that's a great idea!”
“You went to law school, you're smart, analytical…” retorted Me Lisa Blatt. “I went to law school and didn't learn a lot of law,” the judge replied. “But I had a dog, I know a little about dogs…”
The high court must render its decision before June 30.