November 28, 2022
Bloomberg Law
The U.S. Supreme Court agreed to review Jack Daniel’s Properties Inc.’s claim that a whiskey bottle-shaped dog toy labeled “Bad Spaniels” infringed its trademark. The review comes on the heels of the U.S. Court of Appeals for the Ninth Circuit decision that the dog toy was an expressive work and non-infringing parody. Bloomberg Law spoke with Finnegan partner and American Intellectual Property Law Association (AIPLA) president, Patrick Coyne, about the decision.
Coyne said the courts should apply a confusion analysis to accused commercial products, not “give a hall pass if there’s minor level of humor.” He added that the Ninth Circuit’s reasoning would leave brand owners powerless to address consumer confusion and their brands being tarnished. “All I have to do to infringe someone’s trademark is add an element of humor and get immunity,” he said.
Coyne pushed back on the idea that a confusion standard would hamper free speech or that it would impose undue expense on defendants who aren’t merely riding on plaintiffs’ marks for commercial gain. He recognizes that increasing litigation costs can create an unfair field for the smaller entity for any claim. But he objected to letting VIP off the hook without defending itself against claims its products confused consumers and tarnished Jack Daniel’s trademarks, noting that Jack Daniel’s had itself licensed its trademarks for use on dog toys.
“We don’t see that as a chilling effect,” he said. “Our point was to try to get cleaned up where the line is. How far does parody really extend to giving you immunity.”
Read ”‘Bad Spaniels’ Toy ‘Hall Pass’ Pits Trademarks, First Amendment”
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