A recent case heard by the Supreme Court regarding whiskey and a dog toy might be humorous to some, but it deals with the important topic of trademark infringement and the fair use of parody. Specifically, when is humor an exception to federal trademark infringement laws?
The current law on parody
The federal Lanham Act gives us the test for determining trademark infringement. Trademark infringement occurs when one entity uses a mark so similar to another entity’s trademark that consumers would be confused, mistaken or otherwise deceived.
However, the Trademark Dilution Revision Act of 2006 gives an exception to trademark infringement in the form of parody. Under that law, the fair use of parody might not constitute trademark infringement under certain circumstances. However, a parody cannot dilute a famous trademark’s reputation.
Jack Daniel’s Properties, Inc. vs. VIP Products LLC
A case recently heard by the U.S. Supreme Court addresses the issue of parody in trademark infringement cases. The case, Jack Daniel’s Properties, Inc. vs. VIP Products LLC, involves the famous whiskey company’s signature trademark and a VIP Products dog toy that looks like a Jack Daniel’s whiskey bottle, but is dog-feces themed.
The question before the court was whether VIP Products was profiting from Jack Daniel’s Properties’ trademark. Jack Daniels argues VIP Products is committing trademark infringement that confuses buyers and negatively impacts Jack Daniel’s reputation. VIP Products argues that the product is a spoof, and thus does not constitute trademark infringement as no reasonable consumer would confuse the dog toy with a Jack Daniel’s product.
The case even delved into freedom of speech issues as they relate to intellectual property. While Jack Daniels argued trademarks are a type of property right that legally restricts speech, VIP products argued trademarks are a type of celebrity and the public has the constitutional right to make humorous comments about celebrities.
The Supreme Court has not indicated which side of the case will prevail. Still, it brings up interesting questions surrounding trademark infringement, parody and free speech that are worth paying attention to.