The American distillery Jack Daniel’s has however sued the company VIP Products because it markets a canine toy called “Bad Spaniels” (bad spaniel), which resembles its famous square bottles with black label.
The case might seem anecdotal but it will be submitted Wednesday to the rigorous examination of the very venerable Supreme Court of the United States.
The nine Sages will have to say whether the diversion of a brand for humorous purposes can be considered as falling within the freedom of expression and therefore derogating from the rules on intellectual property.
If the question is serious and likely to have repercussions for other companies, the hearing should be punctuated with antics of more or less good taste.
Beyond the use of its visual codes, Jack Daniel’s criticizes VIP for having multiplied the scatological jokes on its chew toy, and for having damaged its own image in the process.
Where Tennessee whiskey has an alcohol content of 40%, Bad Spaniels are made with “43% poo” and risk ending up on “Tennessee carpets”.
“Let’s be clear: everyone likes a good joke” but that of VIP is “motivated by the lure of profit, and creates confusion among consumers”, lamented the lawyers of Jack Daniel’s in an argument sent to the Supreme Court .
“Freedom to Mock”
The bourbon maker, which belongs to the listed company Brown-Forman, took legal action following the toy was marketed in 2014 to protect its brand. He won his case in trial court, but suffered a setback on appeal.
He then turned to the Supreme Court and received the support of many companies, in particular the food giant Campbell, whose soup cans were hijacked by the famous artist Andy Warhol, or even the textile groups Patagonia and Levi Strauss.
The latter argue that they use their brands to promote causes – environmental or ethical – and fear that their message will be blurred in the event of diversion.
For VIP, however, “freedom of expression begins with the freedom to make fun”.
“Objects of mockery, satire, parody — whether government officials, artists, personalities, household names — bristle at what they perceive as negative, or a loss of control over their image”, note his lawyers in their answer to the Court. “But it’s the price of glory.”
The high court must render its decision before June 30.
