Supreme Court Ponders a Surprisingly Difficult Case About Poop Jokes (vox.com) 135
The Supreme Court will take a break on Wednesday from the unusually political mix of cases it decided to hear during its current term, to consider a case about poop jokes. From a report: Jack Daniel's v. VIP Products asks whether VIP Products, the nation's second-largest maker of dog toys, infringed upon the whiskey maker's trademarked bottle shape and label when it sold dog toys that resemble a bottle of Jack Daniel's. The dog toy, named "Bad Spaniels," juxtaposes imagery drawn from the whiskey maker's trademarks with a gag about a dog dropping âoethe old No. 2 on your Tennessee carpet." Jack Daniel's seeks a court order prohibiting VIP from continuing to sell this toy.
Jack Daniel's is, on the surface, a very silly case, which prompted some very silly attempts by the whiskey maker's lawyers to explain why their client is so offended by this dog toy. Sample quote from their brief: "Jack Daniel's loves dogs and appreciates a good joke as much as anyone. But Jack Daniel's likes its customers even more, and doesn't want them confused or associating its fine whiskey with dog poop." Lurking below the surface, however, are very serious questions about the First Amendment. And about how far courts should go in second-guessing Congress's decisions about how to balance the needs of the marketplace with the demands of free speech. VIP has strong legal arguments that it should prevail in this case, but Jack Daniel's also raises strong claims that the lower courts did too much to undermine federal trademark law.
Jack Daniel's is, on the surface, a very silly case, which prompted some very silly attempts by the whiskey maker's lawyers to explain why their client is so offended by this dog toy. Sample quote from their brief: "Jack Daniel's loves dogs and appreciates a good joke as much as anyone. But Jack Daniel's likes its customers even more, and doesn't want them confused or associating its fine whiskey with dog poop." Lurking below the surface, however, are very serious questions about the First Amendment. And about how far courts should go in second-guessing Congress's decisions about how to balance the needs of the marketplace with the demands of free speech. VIP has strong legal arguments that it should prevail in this case, but Jack Daniel's also raises strong claims that the lower courts did too much to undermine federal trademark law.
Live Freely. Drink Responsibly. (Score:5, Funny)
That's what their website says. If you're confusing a glass whiskey bottle with a rubber dog's toy, you've probably had one too many
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It's not confusing the whiskey with the toy, it's confusing the bottle for the toy which bears a striking resemblance, including the font, to Jack Daniels' bottles of whiskey.
Someone taking a look at the dog bottle could easily confuse it with a bottle of Jack Daniels and think this product was endorsed by, or comes from, JD.
Re: Live Freely. Drink Responsibly. (Score:2)
Is the standard that, there exists a person that could make this assumption, or that a reasonable could make this assumption, or that most reasonable people would make this assumption?
Re: Live Freely. Drink Responsibly. (Score:5, Insightful)
I believe (but, standard /. disclaimer of IANAL), being that this is Trademark () not Copyright (©), not only is the burden unclear, the law requires that Jack Daniels defend its Trademark against any usage that is not approved by them or risk losing it. That is, from my non-lawyer understanding, the crux of the case. As far as I'm aware, there is no precedent for Trademark to be protected by First Amendment parody protections.
Now, in my personal opinion, this is absolutely fucking ridiculous and a waste of time and taxpayer dollars for it to have to end up in front of the SCOTUS. But, (again, from my non-lawyer legal understanding) until something like this did, it could be confusing in perpetuity.
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The one time I don't actually look at the preview is the time that something gets garbled. Surprised the TM disappeared but the © symbol did not even get mangled though.
Re: Live Freely. Drink Responsibly. (Score:2)
One is ASCII, the other isn't?
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My assumption as well. I was too lazy to look up the html to do TM properly in the follow-up post.
Re: Live Freely. Drink Responsibly. (Score:4)
As far as I'm aware, there is no precedent for Trademark to be protected by First Amendment parody protections.
There is a quite a bit of precedent, actually. [americanbar.org] Little of it seems to be at the Supreme Court level, but there doesn't seem to be a lot of conflict between district courts.
'In order for the use of another’s mark to constitute fair use, it “must convey two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original.”'
It's more complicated than a copyright vs parody case, but the principles aren't very different.
But beyond the similar overall shape, and similar font, it's hard to see how Jack Daniels is going to argue that the consumer might be confused, since to do so, they'll have to say, under oath, that the average person might confuse their products with something that says it contains dog poop. Unless, of course, that's actually what they believe.
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There is a quite a bit of precedent, actually. [americanbar.org] Little of it seems to be at the Supreme Court level, but there doesn't seem to be a lot of conflict between district courts.
'In order for the use of another’s mark to constitute fair use, it “must convey two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original.”'
It's more complicated than a copyright vs parody case, but the principles aren't very different.
But beyond the similar overall shape, and similar font, it's hard to see how Jack Daniels is going to argue that the consumer might be confused, since to do so, they'll have to say, under oath, that the average person might confuse their products with something that says it contains dog poop. Unless, of course, that's actually what they believe.
Interesting article, but, my work computer being how it is, I could read it all...sigh. Will definitely dive in when I get home and can read it in full. Thanks!
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The article says that the bottle shape is trademarked but I didn't think that bottle shapes could be trademarked.
Gibson would happily show you that shapes can absolutely be trademarked [gibson.com], why would bottles be different?
I think what you might be confusing it with is actually that clothing design cannot be trademarked (which is partially why you find so many clothing logos trademarked and on their clothing).
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The article says that the bottle shape is trademarked but I didn't think that bottle shapes could be trademarked.
Remember when Apple sued Samsung over the roundness of the corners on a tablet?
(as if there was never a shape with rounded corners before the iPad)
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I do and that case was about a design patent Apple had, not a trademark.
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I believe (but, standard /. disclaimer of IANAL), being that this is Trademark () not Copyright (©), not only is the burden unclear, the law requires that Jack Daniels defend its Trademark against any usage that is not approved by them or risk losing it.
Of course, defending the trademark can be as simple as sending a demand letter requiring that all of their advertising materials clearly state that the Jack Daniels bottle and label design is a trademark of Jack Daniels and that the parody is by permission. Nothing in trademark law requires them to actually go to court, or even charge money to license the mark, so long as there is no potential for actual confusion in the marketplace.
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scotus took the case when they didn't have to, so they seem to think there is some significant issue to be decided.
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Not having seen the packaging, and not really knowing anyone who drinks whiskey, I can't answer that question. But that's the question. Note that people don't have to see the dog toy and think it's whiskey, for the trademark to be infringed. If they see it and think it's a dog toy presumably licensed by the whiskey company, then the trademark is being infringed.
As someone who does drink whiskey and has dogs who like dog toys. If you showed me just the outline of the two, I could easily mistake the dog toy for the bottle, but that's about it.
Re: Live Freely. Drink Responsibly. (Score:2)
Try not to drink the dog.
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What makes you so sure that their customers can read?
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Someone taking a look at the dog bottle could easily confuse it with a bottle of Jack Daniels and think this product was endorsed by, or comes from, JD.
I saw Mickey Mouse in an episode of South Park. I didn't for one second think I was watching a Disney cartoon.
Parody is protected free speech. If it wasn't for the fact that the SCOTUS is also a corrupt pile of old #2, we wouldn't even be having this discussion.
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It's not really about confusing, it is about the brand.
I've never heard of this 'bad spaniel,' but if I was to every call Jack Daniel's shit, I would definitely make that joke now. How about some shitty Bad Spaniels?
That's not a good thing to be associated with the brand.
Now how that plays out between trademarks or free speach... I have no clue.
But I'd say it's hard to suggest it has potential/harm to them.
Imagine a play on the trademark FORD. Imagine someone released a toy call Fix Or Repair Daily, where y
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It's not really about confusing, it is about the brand.
I've never heard of this 'bad spaniel,' but if I was to every call Jack Daniel's shit, I would definitely make that joke now. How about some shitty Bad Spaniels?
That's not a good thing to be associated with the brand.
Now how that plays out between trademarks or free speach... I have no clue.
But I'd say it's hard to suggest it has potential/harm to them.
Imagine a play on the trademark FORD. Imagine someone released a toy call Fix Or Repair Daily, where you get play fix a toy car. That's a bad association to have with your brand.
...If nothing else, it's near-subliminal advertising for those who actually make the connection. Otherwise, no harm. Or maybe that's the purpose of the case - increase sales by just having their name and product out there (JD), and also mention the other product they have an issue with to encourage dissenters to purchase that product, hence subliminally suggesting drinking the booze, not the poos. That would only apply is legal cost resulting sales. Eh, food for thought.
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I've never heard of this 'bad spaniel,' but if I was to every call Jack Daniel's shit, I would definitely make that joke now. How about some shitty Bad Spaniels?
That's not a good thing to be associated with the brand.
Displaying an utter lack of a sense of humour and behaving like a butt-hurt snowflake is also not a good thing to be associated with the brand. If I was a JD drinker, I would no longer be one after hearing this.
Live Freely...unless we don't like your opinion? (Score:2)
That's not a good thing to be associated with the brand.
Yes, but as I understood it trademark law is there to prevent confusion, not to protect a brand from being criticised or poked fun of. For example, someone can express an opinion that "Jack Daniels is shit" and they are using JD's trademark to express a negative opinion of their brand. This is not something JD want its brand associated with but trademark law does not protect them from it because that would be the death of free speech.
Imagine someone released a toy call Fix Or Repair Daily, where you get play fix a toy car. That's a bad association to have with your brand.
Yes, it is...although I suspect Ford might think twice before publicly a
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So let's see what comments do bear the imprimatur of "Funny" around here. Exactly zero. No Funny, but hard to expect much on Slashdot these years.
You've got a low enough UID that I'd have assumed you'd know why this is the case. Attempting to be funny on /. is high risk, no reward when it comes to karma. Funny mods award no karma points, but you'll still lose karma every time another moderator finds your joke to be offensive. So you're stuck making jokes as inoffensive as possible. [youtube.com]
Ironically, this whole case is also because Jack Daniels couldn't take a joke.
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Hehehe. Juicy. Gigantic. Slowly. Harder.
Wait, this is about poop, right?
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What is preposterous is a person unable to abstract to other peoples needs. And meeting those needs for profit.
Fine whisky? (Score:5, Insightful)
Jack Daniels is rotgut. Nobody is going to mistake a dog toy, or Jack Daniel's, as "fine whiskey".
I can see their concerns though (Score:2)
Most whiskey's are rot gut. I'm not a drinker, but the guys I know who are say you have to pay through the nose for whiskey that doesn't hurt to drink. So perception and branding is everything to those guys. What I'm not sure is if legally trademark law can (or should) shield them.
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Funny you mention the product wasn't of much interest in the sea of dog toys. With legal action pending, it's now going to sell out in high demand. Gotta love the free advertising.
Re:I can see their concerns though (Score:4, Interesting)
if the dog toys took off and became a meme then yeah, it would do brand damage.
Brand damage? They literally sell an addictive poison known to contribute to car crashes and non-consensual sex. There's a federally mandated warning right on the bottle. Fuck 'em if they can't take a joke.
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Alcohol...helping ugly people get laid too...since the dawn of time.
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Alcohol...helping ugly people get laid too...since the dawn of time.
What did you say? Helping poo get laid?
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if the dog toys took off and became a meme then yeah, it would do brand damage.
Brand damage? They literally sell an addictive poison known to contribute to car crashes and non-consensual sex. There's a federally mandated warning right on the bottle. Fuck 'em if they can't take a joke.
They probably lost lawyers to COVID-driven retirement, and hired former tobacco industry lawyers to replace. Insert drum roll here.
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if the dog toys took off and became a meme then yeah, it would do brand damage.
Ah, so the perfect response to that is for JD lawyers to shine a spotlight on the Streisand Effect.
Brilliant, by moron standards.
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if the dog toys took off and became a meme then yeah, it would do brand damage.
But does brand damage matter? I know that it's common to just use the blanket term "intellectual property" as if it's real property and operates under the same theory, but the different branches of intellectual property have specific justifications for even existing. Copyright: to ensure a rich public domain. Patents: to promote the progress of science and the useful arts. Trademarks: to avoid consumer confusion to the source or origin of goods. Design patents: Uhhhh.... why the hell do those exist? Did pa
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No, it really isn't. Jack Daniels makes a very clean vodka and then ages it in a premium activated charcoal lined oak barrel. It may be cheaply produced but it isn't rotgut.
If anything those overpriced single malts with that nasty peat flavor the scotch snobs seem to love is the actual rotgut. I'll never understand the love of smoked peat flavor when the closest counterpart I can come up with is the flavor of a tylenol held in the mouth too long but that bit is flavor preference.
Personally, I'd take a James
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What? Jack Daniels isnt rotgut because some fringe line of vodka they make is good? Anyone talking about Jack Daniels being rotgut is clearly talking about their whiskey and that is indeed pretty bad. I gave that stuff up when I gave up Steel Reserve when I left my broke punk rock phase as a kid.
I do agree with you about a lot of scotches though, I have no desire for peat to be present in anything I consume.
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I do agree with you about a lot of scotches though, I have no desire for peat to be present in anything I consume.
Seconded. I don't mind a hint of "smokey" in my scotch, but that Islay stuff is for the birds. I find it a lot like IPAs, intentionally made to taste like shit, just for the purpose of tasting like shit. The "background" flavors of scotch are the best part, but I've never been able to "see past" the peat flavor.
Re:Fine whisky? (Score:5, Informative)
"Jack Daniels isnt rotgut because some fringe line of vodka they make is good?"
No, I'm saying that Jack Daniels No. 7 (let's be real, the only one) IS a vodka. It meets the requirements to be called a Tennessee because of the grain used in the mash and the water used. They run it through a giant column still that strips it to an ultrapure neutral spirit aka vodka and then drip that through a multi-story column of charcoal for additional filtration. If that sounds familiar it is because the idea floated around colleges for awhile that the only difference between premium vodka and rotgut was filtration and lots of frats started filtering their cheap vodka through a 3 or 4 ft length of PVC filled with activated charcoal from the pet store. It actually does improve it quite a bit.
They then cut it back to the correct ABV with good Tennessee limestone spring water. They make their own white oak barrels and char them with superheated steam to line them with activated carbon and age it in their warehouse. If I remember right there might be an intermediate stage where it is aged in larger barrels at higher ABV and the master distiller samples and selects barrels which are ready to break down to finish in the smaller barrels that get shipped.
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They claim 140 proof on their website but their graphic tips their hand with the image of the continuous column still. In any case, I knew a guy who worked in their distillery and have also seen the setup on a couple documentaries/whiskey focused food shows and it comes out of the still at 190+ just like every other large column rig, then they cut it back with water to 140 which is probably what they did before they modernized their distillery. Most commercial distilleries use column stills these days, what
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They were referring to the process of making whiskey - you ferment grains, distill it into clear ethyl alcohol (his inaccurate statement of "vodka"), and then age it in a charred white oak barrel.
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What? Jack Daniels isnt rotgut because some fringe line of vodka they make is good?
I think you're misunderstanding. It seems that what they're talking about is the process by which Jack Daniels makes its whiskey, which is apparently by first making what is essentially Vodka, then adding flavoring by leaving it in the aforementioned barrels. Essentially, they're questioning if it even truly is "whiskey". Since aging in oak barrels seems to be what defines "whiskey" then the answer seems to be that it is, but maybe the pedigree is a bit questionable.
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No, it really isn't. Jack Daniels makes a very clean vodka and then ages it in a premium activated charcoal lined oak barrel. It may be cheaply produced but it isn't rotgut.
Who the hell would actually know if it's rotgut or not? I was today years old when I found out Jack Daniels makes vodka. Hell of a branding effort there. /s
And quite frankly, Costco sells a "very clean vodka" that in testing compares to the highest rated brands. It's not exactly hard to do. All the more reason brand recognition sells, not taste. Maybe Jack Daniels will learn from that, and actually advertise the fact that they make more than cheap whiskey.
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lol I'm talking about their cheap whiskey. It is a Tennessee whiskey because of the grain and limestone water they use (and state approval) for the mash and to cut back the ABV. But they take that mash and distill it in a column still to 96% alc/vol which is neutral spirit or vodka and as pure as it gets. They then trickle that through a giant column of charcoal and age it in superheated steam barrels. That is where the color comes from.
So yeah, JD No. 7 whiskey is a vodka aged in an oak barrel.
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lol I'm talking about their cheap whiskey. It is a Tennessee whiskey because of the grain and limestone water they use (and state approval) for the mash and to cut back the ABV. But they take that mash and distill it in a column still to 96% alc/vol which is neutral spirit or vodka and as pure as it gets. They then trickle that through a giant column of charcoal and age it in superheated steam barrels. That is where the color comes from.
So yeah, JD No. 7 whiskey is a vodka aged in an oak barrel.
I see, and stand corrected.
Thank you for reminding me why I drink bourbon, and not whatever that shit is supposed to be.
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Bourbon is made the exact same way. The only difference is the makeup of the mash in the fermentor.
Bourbon must be at least 51% corn in the mash, IIRC.
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And what shit is supposed to be is the top grossing whiskey in the United States and sixth highest grossing globally. It is a perfectly suitable low hangover solution for shots, mixed drinks and just getting hammered.
The problem with the column continuous distillation is that it isn't a fractional distillation. It isn't about the 96% but what still lives in the other 4%. The JD method uses charcoal to remove off flavors and does a good job. I've had the work of an actual master distiller (think grey bearded
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Bourbon is made the exact same way. The only difference is the makeup of the mash in the fermentor.
Cars are basically made the "exact same way". Doesn't mean the Chevy is anywhere near the Porsche. A lot can be said for Father Time here. When you're shipping several million bottles annually, you got time for Chevy fit and finish. Time costs money too, and you can't alienate your primary low/mid-shelf customer base.
When I choose to drink, I prefer aged wheated bourbons, which is a class on its own even within the world of bourbon.
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There are other whiskeys that aren't scotch (which is all the smoke / peat flavor). See: bourbon. I totally agree on scotch though - it tastes like I'm licking an ash tray. No thanks.
Jack Daniel's is neither bourbon, nor scotch. To be called bourbon, it requires certain percentages of grains in the mash as well as aging in a previously unused charred American White Oak barrel. Oh, and it must be made in the United States, much like "champagne" must be made in France or else it's just "sparkling wine".
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No, it really isn't. Jack Daniels makes a very clean vodka
Literally no one on the face of this planet hears "Jack Daniels" and thinks "vodka". Whatever secondary niche product they also shit out on the side and however good it may be doesn't change what the company is known for and that it is absolute garbage tier Whiskey.
It is cheap though, so good for Whiskey Sours and other mixers, you know, where you add literally anything else to the drink so that you don't make the mistake of drinking Jack Daniels.
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...Whiskey Sours and other mixers, you know, where you add literally anything else to the drink so that you don't make the mistake of drinking Jack Daniels.
Heh. Someone bailed on a bartender friend once, so she says, "Want a free drink?" "Sure, what is it?" "JD and Coke" "Uhh..."
But, since I was properly brought up to not let anything go to waste, I accepted. What else could I do?
Note: Next time, I'll find out something else I can do.
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If you like Islay, I dare you to try Smokehead with its notes of seaweed, iodine, wet clay, and burnt toast.
I'll have to try it.
Seaweed? I love it when wrapped around my sushi.
Iodine? Used for decon on stream water. I didn't mind the taste. Maybe liked it a bit.
Wet Clay? I used to like it until Mother spazzed about it.
Burnt Toast? Is there any other kind?
Re:Fine whisky? (Score:4)
I was going to say, we all know lawyers lie, but calling Jack Daniels "fine whiskey" should be enough to earn him a smiting from some supreme being or another. Or at least a good punch in the gut from the ghost of Dimebag Darrel.
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Jack Daniels is rotgut. Nobody is going to mistake a dog toy, or Jack Daniel's, as "fine whiskey".
JD Old No 7 isn't great whiskey. On the other hand, their Single Barrel Barrel Proof line is absolutely fantastic stuff.
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See, that's where it's confusing - Jack is so bad that I only buy it for my dog.
She's not picky.
Love it, Marketing at it finest. (Score:2)
Didn't everyone learn this kind of humor by age 10? Maybe it's a bit out there, but please don't stop this kind of marketing. I don't think anyone who read the article didn't smile a few times...
Sad (Score:2)
Doggo did a deuce on the floor, and I'm not certain if I should do a shot of JD, or pop that thing in the old pie hole. Same thing, right?
seriously... (Score:2)
I don't know why this story in on /., but I believe the dog toy looks just like a bottle of Jack Daniels. Normally, that kind of thing would be licensed by the trademark holder. Jack Daniels will win this case as far as using the trademark. As far as making jokes about it, to the extent that is in play, they will lose.
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It's clearly parody. It's not as if this product is going to be sold on the same shelf as Jack Daniels or even in the same store and it certainly doesnt have the name "Jack Daniels" anywhere on it. Personally I don't think Jack Daniels has a leg to stand on here.
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You're assuming that Jack Daniels is the trademark holder. They might have relevant trademarks in the category of alcoholic beverages but not in the category of pet toys.
dropping âoethe (Score:2)
Ahh, good old âoethe
Parody (Score:4, Insightful)
This is obviously a parody of JD and hopefully the case gets crushed.
Re:Parody (Score:5, Informative)
Parody is a defense against copyright infringement, not trademark infringement.
Trademarks are weird.
Re:Parody (Score:5, Interesting)
True, trademarks can get pretty weird. But they generally are limited to related products or cases where the product could be confused and it seems unlikely JD's trademark for a whiskey product would apply to a dog toy... which brings you back to the copyright on the art and style and this is obviously a parody work. On the other hand it isn't impossible that JD has branded dog toys at some point.
I guess it depends on what counts as confusion (Score:5, Informative)
Moreover it can absolutely do brand damage to have their whiskey associated with dog toys. What I don't know is if the law addresses that. e.g. if it can be shown there is no risk of consumers confusing the dog toy as a legitimate Jack Daniels product does the possible brand damage come into play?
I know there are laws about competition that might get involved, but I don't know nearly enough to even hazard a guess.
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"I know there are laws about competition that might get involved, but I don't know nearly enough to even hazard a guess."
Yeah I'm just walking around the edges of general material here. I'm not even clear on whether or not the court has actually agreed to hear this case or if it has just made the docket for them to consider.
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"if it can be shown there is no risk of consumers confusing the dog toy as a legitimate Jack Daniels product does the possible brand damage come into play?"
I'll just say this. Trademarks HAVE to be defended or they can subsequently fail when you do want to enforce them. So whatever legal theory or claim someone puts forth, that claim is going to have to explain South Park.
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It's not that the public is going to confuse a dog toy with whiskey, but they might think the dog toy is a licensed product, which could cause issues.
Which is usually a concern addressed by including some small print on the packaging stating that the product is not licensed or produced by the company they're parodying. Or, in the case of South Park, by a big full screen of text disclaimer at the beginning of the show.
Imagine this was the GOP arguing that any of those political comics with cartoon elephants in them are "damaging their brand". See the problem?
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Right because nobody will notice that the actual brand name is conspicuously absent! I think it would be far more effective for JD to start selling dog toys that have their actual trademark on them. Then they would probably be able to stop the off-brand dog toy on grounds that it is too similar to their branded dog toy. I think it is precisely JD's lack of a similar competing product that prevents them from restricting sale of this dog toy, as it should.
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to related products or cases where the product could be confused and it seems unlikely JD's trademark for a whiskey product would apply to a dog toy...
When you describe it as "a dog toy". You'd be absolutely right. But it's not "a dog toy". What it is is "a complete likeness of the Jack Daniels trademarked bottle, down to the colour, patterns, and font on the label and giving it a special number, that just so happens to be a chew toy for a dog.
If you're in a related industry you can't even use the name. If you're in an unrelated industry you can use the name, but the idea of confusion directly relates to ripping off the likeness of a product. If you saw t
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From what I can see TOPS who would be no stranger to licensing arrangements.
I'm conflicted (Score:2)
While I hope this parody is protected I still hope the highest court in the land can put an end to shitty jokes.
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While I hope this parody is protected I still hope the highest court in the land can put an end to shitty jokes.
There's very little left that is still safe to make a joke about without offending someone. It's a sad state of affairs that now even liquor businesses can't take a damn joke.
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Parody does not apply to trademark infringement.
dogs over profits (Score:2)
"Jack Daniel's loves dogs and appreciates a good joke as much as anyone. But Jack Daniel's likes its customers even more, and doesn't want them confused or associating its fine whiskey with dog poop."
I mean their response tells you everything you need to know. They prefer profits over dogs.
Trademarks are really bogus IP (Score:3)
I get that say Jack Daniels Enema might be something that that would create a legitimate trademark issue in similar circumstances... but really there is no good reason to allow trademark protections to be overly broad. Until it is egregious there really should be latitude for other "innovations".
This isn't a new problem (Score:3)
Hasn't satire and parody always been a fair use exception in IP cases?
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Copyright yes. Trademark infringement no. Also this is neither satire nor parody. It's taking the likeness of one product and applying it to another.
parody (Score:2)
How is this different than other parody products like Garbage Pail Kids?
Jack Daniel's obviously has too much money for lawyers and are trying to stomp out a dog toy company over a joke.
Trademark vs Copyright (Score:3)
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They really didn't think this one through... (Score:4, Insightful)
> "Jack Daniel's loves dogs and appreciates a good
> joke as much as anyone. But Jack Daniel's likes its
> customers even more, and doesn't want them
> confused or associating its fine whiskey with dog
> poop."
So, with that statement Jack Daniels have admitted that they have a profoundly low opinion about either their product or customers (Or both.). Either they've admitted that they know their whisky is such low-end rotgut swill that a reasonable normal customer could mistake the taste for dog shit. Or they've admitted that they think their customers are such drunken tasteless trashy louts that they could confuse their whisky with dog shit.
Either way, it's a pretty bad look for Jack Daniels. (On top of the abuse of the legal system to try to squash an obvious, to anyone with more than two neurons to rub together, parody.)
Commercial speech can be regulated. (Score:2)
We have Truth in Lending laws, the bank can not lie about the contracts you sign with them
We have Truth in advertising laws, the advertiser does not enjoy absolute right to lie, knowingly lie. A TV company can call itself news channel, and have its anchors pretend to be news people, agree behind the camera what they say to their viewers are lies, and still claim first amendment protections. But not the
Bigger brand perception issues (Score:5, Interesting)
Jack Daniels should be worried more about how vapors from their distillery have covered an entire town in fungus [nytimes.com]. I'd say that's probably a bigger reason to think of their product as "shitty" than some obviously-a-parody dog chew toy.
Where is the confusion? (Score:2)
Consider where the dog toy is likely to be displayed in the store.
Do you honestly believe that anyone walking along the Pet Care aisle will see this and think "Why is there a bottle of booze here?"
Also, if Jack Daniel's actually were to make a dog toy, wouldn't they be more likely to use a replica of the actual label with their name on it?
That this case made it all the way to the Supreme Court speaks volumes for the nation's IQ Reduction Program.
Re: (Score:2)
That this case made it all the way to the Supreme Court speaks volumes for the nation's IQ Reduction Program.
Totally on brand for the Idiocracy timeline, though.
"Your honor, my client totally tried to drink this dog toy and there was no whisky in it! He was so bummed he didn't even feel like baitin' for the rest of the day. You should give us like, a billion dollars for damages."
Re: (Score:2)
Do you honestly believe that anyone walking along the Pet Care aisle will see this and think "Why is there a bottle of booze here?"
The confusion doesn't relate to someone trying to drink a dog toy. The confusion relates to who they think produced the dog toy. Look at the pictures in the article and tell me you don't think that is something that Jack Daniels itself may sell as a party gag. That's the issue here, it very much looks like it may be a Jack Daniels product.
Parody (Score:2)
Hang whomever thought this should get to the Supreme Court.
Re: (Score:2, Troll)
I don't get why Jack Daniels is fighting this (Score:3)
If you see this dog toy, you'll immediately think it's cute and is referencing Jack Daniels. It doesn't say anything negative about Jack Daniels.
There's a considerable chance that when you next want a shot, you'll think Jack Daniels because you thought about it recently.
Brand damage (Score:2)
The real issue with the product is this: You might reasonably think that this is branded merch sold by the distiller (like hats, shirts, etc... JD sells a ton of merch). And you might think "well, this is a pretty stupid and juvenile idea for a piece of merch, it's not even funny". It reflects badly on the brand and makes you less inclined to drink their whiskey.
The best analogy I can think of, oddly enough, is Weird Al Yankovic. There are tons of people who will record a song parody, sing it in a voice
Re: (Score:2)
. . . It seems like the legal and ethical issues would both be solved by mandating a giant disclaimer on the product, something like "This product is intended as a work of parody and is not endorsed by the manufacturers of Jack Daniels", but what do I know.
And my dog is supposed to read this?
Re: (Score:2)
Try making a dog toy that looks like Mickey Mouse.