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Can you infringe on a trademark by making a parody of it?

On Behalf of | Dec 16, 2022 | Intellectual Property, Trademark |

Parody can be powerful. It can clarify a subtle point. It can highlight something about our society. It can speak truth to power. As a result, parody has special protections under American law.

For example, Americans have a First Amendment right to make fun of individuals, organizations and the political system. The fact that something is an obvious parody is generally a defense to a defamation claim.

Is it a defense to a trademark infringement claim? The U.S. Supreme Court is set to decide.

The case involves a squeaky dog toy that mimics a bottle of Jack Daniels whiskey. The toy resembles the trade dress of the whiskey. The “bottle” is shaped about the same as a Jack Daniels bottle. Instead of the bottle’s iconic phrases, “Old No. 7 brand” and “Tennessee Sour Mash Whiskey,” the squeaky toy reads, “The Old No. 2 on Your Tennessee Carpet.” The toy also claims to be “43% Poo by Vol.” instead of “40% alcohol by volume.”

It’s clearly a joke. Is that enough to protect the dog toy’s manufacturer from a trademark infringement claim?

Jack Daniels isn’t the only company that believes the law on parody trademark infringement needs an update. Major companies from Campbell Soup to Levi Strauss filed briefs urging the Supreme Court to take the case.

They claim lower court rulings have given parodists “near blanket protection” from trademark infringement claims.

The dog toy maker, VIP products of Arizona, has a whole line of parody dog toys, including “Mountain Drool” (Mountain Dew) and “Heini Sniff’n” (Heineken). In fact, its Budweiser parody “ButtWiper” was ordered off the market by a judge in 2008. Nevertheless, it contends that Jack Daniels needs to learn how to take a joke.

For its part, Jack Daniels accuses the dog toy maker of profiting from its goodwill and confusing consumers.

The case will be heard early in 2023 and we may have an answer before the high court goes on its summer recess.

What do you think about parody products?

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