When our second-born, Julia, decided to go to law school, we weren’t surprised. Growing up, I told her how I have enjoyed the practice, had many interesting cases, and how rewarding it is to represent people who need our help. On our way to the airport, I reminded her that my longtime dream could now actually become a reality. As I hugged her, I said, “Now, when you graduate, you come right back from California, and then you can practice with your Dad!” But she didn’t seem as enthused as I–giving me that adolescent look every parent gets from their child as if to say, “ Ugh, Dad, I’m not sure I want to be you.”
Well, she’s not. Yesterday, as a mere second-year Stanford Law School student, she was in the nation’s highest courtroom, listening to the oral argument before the nine justices on a case in which she co-wrote a friend-of-the court (“amicus”) brief on behalf of 30 trademark law professors that includes her own; who weighed in on behalf of a dog toy. In nearly 33 years of practice, I have never had a case in the U.S. Supreme Court, though once in my third year, I got to change a comma to a semicolon on a brief for review there. We are, of course, so proud of her.
The case is Jack Daniel’s Properties v. VIP Products LLC (No. 22-148). The key question is which test courts should apply to trademark infringement claims for expressive works, particularly those that involve not just a political statement but a profit motive. Fundamentally, one has to wonder whether consumers might think that the company that puts out a popular whiskey created a silly and somewhat disgusting yet funny dog toy called Bad Spaniels. Jack Daniel’s insists consumers could be confused as to whether Jack Daniels made or authorized the toy. I don’t know…I’ve had my share of J.D.’s Tennessee whiskey and would never think this toy was a J.D. product or demeans the brand just because it has a somewhat similar label design or is in a squarish rubber bottle.
The issue before the Supreme Court is what legal test to apply, and how to apply it, to decide the claim. But fundamentally, the court always needs to consider the potential impact this goofy case will have on others. So the real question is broader: How strong is the power of a trademark as limitation on free speech, when challenged by a parody that is not political, but rather serves someone else’s commercial interests? If we rely on potential confusion as the benchmark, does the court need a survey of those who are confused and not confused, or can a judge or jury simply exercise their independent judgment of what is reasonable? Despite the humorous circumstances of this case, the issues are not trivial – many millions, even billions, of dollars can tip in the balancing of such issues.
Julia’s mom and I listened intently to the oral argument on the Supreme Court’s website. Admittedly, we are dog owners and had our labrador by our side though she has yet to get her paws on one of the toys. Yes, the fur was flying. The words “dog poop” were used, as was reference to the adult film Debbie Does Dallas, a parody on the Cowboys cheerleaders. To the surprise of many, Justice Thomas, who throughout his high court tenure has been famously silent during oral argument, asked questions. But to the relief of all, he did not mention Coke or anyone’s screen name. The decision will not come out for months, most likely. Regardless of the outcome, it was a thrill to know our little Sweat Pea is well on her way to being a top dog.