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Supreme Court Weighs Trademark Infringement, Free Speech in Jack Daniel's Bottle Dog Toy Case

Chris Hanslik

by Chris Hanslik

May 1, 2023

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In March, the Supreme Court gave out mixed signals on whether they will allow a company to parody a Jack Daniel’s bottle in its line of dog chew toys.

VIP Products LLC v. Jack Daniel’s Properties Inc. involves a trademark dispute between Jack Daniel’s and VIP Products, the maker of a dog toy called “Bad Spaniels Silly Squeakers.” The toy resembles a Jack Daniel’s whiskey bottle and parodies its label.

The outcome of the case is presently unclear after more than an hour and a half of proceedings. Justices Sonia Sotomayor and Samuel Alito asked questions about the intersection of free speech and copyright infringements. Justices Elena Kagan and Neil Gorsuch looked for ways to return the case back to lower courts.

As of now, the product is still listed on Amazon and is marked temporarily out of stock. The retailer has several products created along this same vein, including popular soft drink, beer, wine, and liquor brands. Clients need to consider, to the extent you have a registered trademark, you must be vigilant about enforcing your rights, or you could risk waiver for incidents of future infringement.

VIP Products: It’s Free Speech

The dog toy features a parody of the iconic label with light-hearted, dog-related alterations. The toy maintains the bottle shape, label style, and color scheme of the original Jack Daniel’s bottle but replaces the original text and imagery with humorous, dog-themed elements such as a picture of a mischievous-looking spaniel and phrases like “The Old No. 2, on your Tennessee carpet” instead of “Old No. 7, Tennessee Whiskey.”

VIP Products argues that their dog toy should not be considered trademark infringement or dilution because it is a humorous and expressive work, intended to comment on or poke fun at the Jack Daniel’s brand rather than to confuse consumers or compete with the whiskey product.

The retailer contends that the First Amendment protection of free speech should allow them to create and sell their parody dog toy without being restricted by trademark law. VIP Products further argued that the lower courts erred in not applying the Rogers Test, which is used to balance trademark protection with First Amendment rights.

Jack Daniel’s: It’s A Trademark Violation

Jack Daniel’s argues that their trade dress and bottle design are distinctive and non-functional, making them eligible for trademark protection. They believe that VIP Products’ dog toy too closely resembles their whiskey bottle, potentially causing confusion among consumers and leading them to believe there is an association or endorsement between the two products.

Additionally, Jack Daniel’s claims that the dog toy dilutes their trademark by tarnishing their brand image. Jack Daniel’s also contends that VIP Products’ nominative fair use defense is not valid because the dog toy does not meet the necessary criteria, as there are significant differences between the toy and the actual whiskey bottle.

The Lanham Act, a federal statute governing trademarks in the United States, plays a significant role in the case, as it outlines the framework for assessing trademark infringement, dilution, and fair use, which are central to the dispute between the two parties over the parody dog toy.

Why It Matters

The Supreme Court’s decision in this case will likely have significant implications for trademark law, First Amendment protection, and the balance between brand protection and free speech.

Here’s why this is important:

  • Clarification of First Amendment protection in trademark disputes: The Supreme Court’s decision will likely clarify how First Amendment protection should be applied in trademark disputes involving parody and expressive works, like the “Bad Spaniels Silly Squeakers” dog toy. This could have wider implications for other cases involving similar disputes between brands and creators of parody or expressive products.
  • Impact on the Rogers Test: The Supreme Court’s decision may provide guidance on the application of the Rogers Test, which is used to balance trademark rights with First Amendment protection. The Rogers Test requires the plaintiff to show that the defendant’s use of a mark is either (1) not artistically relevant to the underlying work, or (2) explicitly misleads consumers as to the source or content of the work. The Court’s ruling could potentially refine or reshape the Rogers Test, affecting future cases involving trademarks and expressive works.
  • Implications for brand protection: The outcome of this case may influence how brands can protect their trademarks from being used in parody or expressive works. If the Supreme Court rules in favor of VIP Products, it could potentially make it more challenging for brands to protect their trademarks from unauthorized use in expressive works. On the other hand, a ruling in favor of Jack Daniel’s could strengthen brands’ abilities to protect their trademarks from dilution and infringement.

This was the second case in two days that the Supreme Court heard regarding intellectual property law. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. involves a copyright dispute between Unicolors, a fabric design company, and H&M, a fashion retailer. The Supreme Court’s decision in this case could affect how the Copyright Office processes registration applications and how courts evaluate copyright infringement claims. The significance of this case lies in the potential impact on copyright registration and enforcement.

Together, these two cases are significant because they address important questions related to the protection of intellectual property rights (trademarks and copyrights) and their interaction with free speech and artistic expression. The Supreme Court’s decisions in these cases will likely have lasting effects on the balance between intellectual property protection and First Amendment rights in the United States.


Gannon, H. (2023, April 11). SCOTUS hears case on a Jack Daniel’s knockoff dog toy. Morning Brew.

VIP Products LLC v. Jack Daniel’s Properties, Inc., No. 18-16012 (9th Cir. 2020).

Stohr, G. (2023, January 13). High Court to Review Speech Test in Jack Daniel’s Trademark Case. Bloomberg Law.

Landau, J. (2022, November 29). Supreme Court Agrees to Hear Two IP Cases. Lexology.

Totenberg, N. (2023, March 22). Supreme Court weighs copyright, free speech protections in Jack Daniel’s case. NPR.

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