Forget what you’ve learned in the past. In its years-long quest to shut down an Arizona-based company’s dog squeaker, Jack Daniel’s gave a scary message to the U.S. Supreme Court today:

“…alcohol and toys don’t mix well, and the same is true for beverages and excrement. The next case could involve more troubling combinations— food and poison, cartoon characters and pornography, children’s toys and illegal drugs, and so on.”

Jack Daniel’s Properties and Arizona-based VIP Products will present oral arguments to the Justices in less than two weeks, about whether the “Bad Spaniels” squeak toy and other “humorous uses” of another’s trademark is subject to the usual “likelihood-of-confusion analysis”. 

Expect at least some of the Justices and at least one attorney to try to pun their way into their oral arguments (or questions), as Jack’s attorneys (including one Phoenix attorney) have – inadvertently or not – done.

The case began in Arizona’s U.S. District Court more than 6 years ago. (We have commented on it at least once since.) And, this is actually the second time Jack has asked the Supreme Court to reverse the lower courts – the Justices declined in 2021, prompting further litigation.

This time around, the Justices have agreed to look at the likelihood-of-confusion analysis and the lower court’s finding that VIP’s “humorous use of another’s mark as one’s own on a commercial product is “noncommercial’…thus barring as a matter of law a claim of dilution by tarnishment”.

(I may be alone on this, but buying the “Bad Spaniels” toy for my non-spaniel dogs would make me more likely than I already am to enjoy my Jack Daniels.)

Other less-humored brands – including Campbell’s Soup and Levi Strauss – have weighed in in support of Jack, and law professors around the country have filed friend of the court briefs on – as you might expect – both sides of the issue.

Tune in March 22 for the oral arguments, with a decision to follow. (Do not expect a squeaky toy to replace the gavel, however.) And, if you are so inclined, I recommend the rest of Jack’s introductory portion of today’s Reply Brief, below.

“AZ Law” includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona’s Politics on the internet. 

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