Puppy Toy Wars

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A distillery giant scraps with a pet toy company

Earlier this year, we reported on a minor dust-up between author Patrick Wensink and Jack Daniel’s, which claimed that the cover of Wensink’s new novel, Broken Piano for President, resembled the company’s whiskey label a bit too closely. The good news is that both sides behaved like grownups and the matter was settled amicably. But now the Tennessee distillery is embroiled in another brand infringement battle—this one involving a puppy chew toy.

The item in question is the Bad Spaniels Silly Squeaker Toy, marketed by VIP Products and designed to look like a Jack Daniel’s bottle, complete with iconic blocky lines, sloped shoulders and beveled corners. While a disclaimer sticker notes that the toy has no connection to the distillery, the distillery isn’t buying it, especially the rendering of its label copy into dog-related puns and one-liners—e.g. “43% poo by vol.” and “100% smelly.” Where the Jack Daniel’s label reads “The Old No. 7,” the Bad Spaniels label reads—of course—“The Old No. 2.”

Since 2014, when Jack Daniel’s sent VIP a cease-and-desist letter, the matter has rattled around in the federal court system until this fall, when the U.S. Supreme Court agreed to take it up. VIP has built their case on First Amendment grounds, arguing that the Bad Spaniels toy is an “expressive work” and thus protected by the Constitution. The distillery has countered with a slap at a “purported First Amendment interest in making poop-themed jokes at Jack Daniel’s expense.”

The Supreme Court won’t hear the case before next March, so the ultimate disposition is impossible to predict. To be sure, in 2008, the lower courts shut down a VIP toy made to look like a Budweiser Beer bottle, but that decision seems to be something of an outlier. VIP markets a wide variety of pet toys that satirize well-known consumer brands—“Cataroma Extra” (a play on Corona Beer) and “Mountain Drool” are among the less icky—and none has run into trouble. And in 2007, the Federal Court of Appeals for the Fourth Circuit upheld the right of the Las Vegas company Haute Diggity Dog to sell “Chewy Vuiton” plush dog toys. Despite growls of protest from the French fashion house, the court called the product “a joking and amusing parody” that “pokes fun at the elegance and expensiveness of a Louis Vuitton handbag.”

When covering these cases in the media, it evidently takes a will of iron to resist the lure of the pun demon. Fortune couldn’t help writing that “Jack Daniel’s is barking mad” about the toy. A New York daily noted that “the case reached the Supreme Court last year, but the justices didn’t bite.” Others bent sentences around phrases like “pet peeve,” “made no bones,” and “carpet bombing.”

We like a pun—even a groanworthy one—as much as the next person. But a little goes a long way. Let’s hit the paws button.