A Poop Joke Dog Toy Just Beat Jack Daniel’s in Court — Again

A bottle of Jack Daniel’s Tennessee Whiskey is displayed next to a Bad Spaniels dog toy in Arlington, Va., Sunday, Nov. 20, 2022. (Photo: AP Photo/Jessica Gresko)

On Tuesday, a U.S. appeals court ruled that a feces-themed “Bad Spaniels” dog toy does not violate the Jack Daniel’s whiskey trademark. The development is the latest in a long-running legal saga that has bounced between federal and state courts for over a decade.

The San Francisco-based 9th Circuit Court of Appeals overturned a permanent injunction against VIP Products, which was first served a cease-and-desist order for its Silly Squeakers toy in 2014. VIP Products filed a preemptive lawsuit against the distiller shortly thereafter — a lawsuit that it lost when a federal judge found evidence of infringement in 2017. The 9th Circuit, however, later reversed the ruling, and in 2023 the Supreme Court remanded the case back to the lower courts.

All of this over a “lavatorial” reference.

The chewable toys, available online for around $18 each, mimic the shape and lettering of Jack Daniel’s world-famous label. Beneath an image of a cartoon dog, the toys read: “The Old No. 2 On Your Tennessee Carpet,” a riff on Jack Daniel’s “Old No.7 Tennessee Whiskey.” Lawyers for the whiskey juggernaut argue that the language evokes an unwholesome image damaging to the brand.

“They wrote on the bottle ‘43% poo by volume. 100% smelly.’ They’re evoking the image of a bottle of liquid feces, your honor,” Matthew Nicholson, an attorney for Jack Daniel’s, told judges earlier this year. “That is an association that is tarnishing.”

The three-judge panel at the Court of Appeals was unconvinced. According to the ruling, Jack Daniel’s did not conduct a study on whether Bad Spaniels created a harmful association, and instead relied on the broad argument that defecation can create disgust with respect to food and beverage. Judges believe that the dissimilarity between the two products rules out the likelihood of confusion.

“Bad Spaniels is a ​parodic dog toy not intended for human consumption,” the 9th Circuit said. “There is ​no evidence in ⁠the record from which a court could reasonably infer that scatological references made on a dog toy have the same likelihood of generating disgust as identical references on a consumable product meant for humans might.”

In the United States, parody law can protect comedic work that mocks or criticizes an original copyright. The principle is most often applied to works of art or entertainment — say, an “SNL” skit skewering Costco — though it occasionally finds its way into the world of merchandise.

At that, VIP Products is a specialist. The Arizona-based company has released dozens of dog and cat toys mimicking popular alcohol brands, including Doggie Walker (a riff on Johnnie Walker), Barkparty (Bacardi Rum), Smella Arpaw (Stella Artois) and Pissness (a crass, and perhaps sizeable stretch of the imagination away from Guinness).