PHOENIX — The way a federal appellate judge sees it, a squeaky dog toy in the shape of a whiskey bottle, manufactured by an Arizona firm, is “surely not the equivalent of the Mona Lisa.”
But what it is, according to Judge Andrew Hurwitz, is an “expressive work.” And that makes its use protected by the First Amendment against claims by the company that makes Jack Daniels that the toy infringes on its copyright.
The fight that got the attention of the 9th Circuit Court of Appeals deals with a product called “Bad Spaniels Silly Squeaker,” a rubber dog toy which resembles the bottle of Jack Daniels Old No. 7 Black Label Tennessee Whiskey.
There are some “dog-related alterations.”
For example, the “Old No. 7” on the label is replaced by “Old No. 2.” And instead of alcohol-content descriptions, the toy was labeled “43% Poo by Vol.” and “100% Smelly.”
The company that owns Jack Daniels demanded that VIP Productions LLC, based in Scottsdale, stop selling the product.
VIP responded by filing suit and asking for a declaration that it was doing nothing wrong and even asking the court to cancel the Jack Daniels trademark.
A trial judge sided with the whiskey company, deciding the toy infringed on the Jack Daniels trademark and ordering VIP to stop selling the product.
But in a ruling Tuesday, the federal appeals court dissolved that injunction.
Hurwitz, writing for the three-judge panel, said VIP sells various kinds of Silly Squeakers dog toys that look like other items but with a twist.
For example, he said, there’s one labeled “Mountain Drool” which resembles a Mountain Dew bottle. More than a million Silly Squeakers were sold between 2007 and 2017.
On one hand, the appellate judges said the “trade dress” and bottle design of Jack Daniels are distinctive. That, Hurwitz wrote, meant the company can keep its trademark.
But the judge said that didn’t end the discussion. He said there also is an issue of “artistic expression.”
“The Bad Spaniels dog toy, although surely not the equivalent of the Mona Lisa, is an expressive work,” Hurwitz wrote.
