Jack Daniel’s goes to the Supreme Court against the company of brinquedos pets that parodiou carafe

The lawyers of Jack Daniel’s will argue in the Supreme Court of the United States, in this fourth fair (22), that a company of briquettes for dogs violated the federal law of registered trademarks, when it parodied the carafe of spirits to sell or briquede “Bad Spaniels Silly Squeaker” full of piadas on coconut.

The case places the rights of a famous registered trademark holder against the rights of Primeira Emenda of a company that wants to use those trademarks to sell a humorous product.

At the center of the debate is a shrill hop bred by VIP Products, which is very similar to Jack Daniel’s carafes. Besides the general shape of the brinquedo, the plastic carafe, like its glass counterpart, has a similar font style and uses a black label.

VIP borrows Jack Daniel’s “Old No. 7 Brand Tennessee Sour Mash Whiskey” to sell “O Old No. 2 On Your Tennessee Carpet” (“o velho número 2 em su tapete do Tennessee”, in free translation), a reference to puppy fezes.

A label attached to the jump informs that “it is not affiliated with Destilaria Jack Daniel”. This, however, was not enough to prevent Jack Daniel’s from prosecuting the company to pull or jump the market.

The distiller argues that VIP violates federal trademark law and that its skip, especially references to puppy excrement, harms its reputation because it can confuse consumers and make them think that the product belongs to the “oldest registered distillery in us.” USA”.

“With certainty, everyone enjoys a boa piada”, wrote the attorneys for Jack Daniel’s in the court records. “But the profit-motivated ‘pity’ of the VIP confuses consumers to throw away the goodwill conquered by a lot of followers by Jack Daniel’s.”

Depending on how they decide, judges may withdraw some trademark protections, giving entities coverage to legally use trademarks that they do not own, as long as they are used in a way that expresses humor.

A district court ruled in favor of Jack Daniel’s, concluding that the jump infringed the distiller’s trademark. But a court of appeals later found itself on the side of VIP Products, invoking a test created by the court used to determine if a possible violation of a registered trademark in non-commercial instances enjoys constitutional protection.

The court ruled that the use of the trademark of Jack Daniel’s by VIP was not commercial and that, because it was made with humor for an “expressive work”, it is protected by Primeira Emenda.

The case “lida with a very common thing to place someone who has trademark rights against another who is saying: ‘I have the right to use those trademarks, according to Primeira Emenda, because it is a parody. And I need to throw enough of the mark to make her happy. People need to fully understand,’” says Mark Sommers, a Washington, DC trademark attorney.

Sommers added that the decision of the two judges does not have the potential to be a historical decision if they “will help to define the line that exists between the right of expression of the Primeira Emenda – be it in parody, art or what you want to express – versus The important trademark questions that are here, where brand owners who will invest a huge amount of boa vontade do not want their trademarks to be used in a way that could result in potential confusion among the consuming public. ”

The lawyers for Jack Daniel’s told the judges in court documents that the decision of the appeals court “gives imitators a free license to attack innocent consumers and trademark holders” and warned that, if not reversed, companies could use trademarks that are not possuem to flood the markets with supposedly little serious products.

“Ninguém answers that the VIP is trying to be tricked. But alcohol and brinquedos do not mix well, the same is true for drinks and excrement”, they wrote. “The next case could involve more worrisome combinations – food and poison, cartoon characters and pornography, child jumps and illegal drugs and so on.”

VIP argues that consumers can easily distinguish between the two products, as attorneys for the Arizona-based company have written in court documents that they “never sell juice or other foodstuffs, nor do we use ‘Jack Daniel’s’ in any way (in humor or not). ). Hardly imitating the iconic bottle or enough for people to understand it completely.”

“This is a case about speech and attempts by a popular brand to control that speech by using Lei Lanham as a weapon,” they wrote, referring to federal trademark law at the center of the dispute.

“It is ironic that the main distiller of the wine of America lacks a sense of humor and does not recognize when he – and all the others – did not have enough”, told the company of brinquedos to the court.

The Biden government urged the courts to accept the case, such as the Department of Justice on the side of Jack Daniel’s in the dispute.

“A Primeira Emenda does not confer any right to use another person’s registered trademark, or a similar and confusing trademark, as an identifier of origin for merchandise sold non-commercially,” the department wrote in court documents. “De facto, the absence of such law is a basic premiss that encourages the law of violation of registered trademarks. If such a law exists, the states and the federal government may not have the authority to prohibit the infringement of registered trademarks.”

Several large companies have also filed petitions in court in support of Jack Daniel’s, including Nike and Levi Strauss & Co.

“Because many times you have an incentive to label it as such, in any humorous use of the trademark of another person it is a parody,” he wrote to Nike in his summary. “The courts, therefore, must adopt a disciplined approach to this important classification of the cases in which a ‘parody’ is vindicated.”

It is expected that the Supreme Court will still decide this mandate in another high-profile intellectual property law case, as the judges heard arguments last year in a copyright violation case involving the deceased Andy Warhol and the late musician Prince.

During these arguments, the judges will try to determine when a new work based on a previous piece is substantially transformative and when it simply amounts to a copied version of an existing work, subject to copyright law.

Ariane from Vogue from CNN contributed to this report.