In the article “High Court’s ‘Bad Spaniels’ Decision Offers Warning to Creators in Commercial Space,” published by The National Law Journal, Jeff Van Hoosear, co-chair of Knobbe Martens’ trademark practice group, discusses the Supreme Court’s decision in the Jack Daniel’s v. VIP Products case.
In its decision, the Supreme Court sided with Jack Daniel’s, finding that VIP Product’s dog chew toy failed to properly parody Jack Daniel’s well-known bottle and borrowed too much from it. Van Hoosear had previously provided commentary on the case in another NLJ article published after oral arguments in March. He called today’s decision consistent with his takeaways, particularly Justice Elena Kagan’s admission that she did not understand the joke, and with her concern of an “ordinary commercial product” being the focus of the dispute.
Van Hoosear commented on the court’s conclusion that the U.S. Court of Appeals for the Ninth Circuit misapplied Rogers v. Grimaldi as a precedent, saying, “[o]nce you take Rogers out of the equation it goes back to a simple analysis.”
With this decision, Van Hoosear offered warning to trademark attorneys working with clients entering the commercial market with a parody product, saying they would now “need to be wary of judges being final arbiters on humor or parody.” He said, “[y]ou really have to be amusing…Not when you’re making editorial or critical comments, but if you’re making, selling and profiting off a product that utilizes the fame or goodwill someone else developed.”
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