I'll readily concede that I'm not the world's foremost expert on trademark law. But I have a tolerable sense of social utility.
It's true that the plaintiff makes a squeaky little dog toy that looks like a miniature bottle of Jack Daniels. Replete with bad puns and the like: ""Jack
Daniel’s” is replaced with “Bad Spaniels,” “Old No. 7” with
“Old No. 2,” and alcohol content descriptions with
“43% POO BY VOL.” and “100% SMELLY.”" There's no doubt that those who buy this dog toy are making a humorous purchase that's designed to mimic a trademarked item. But I strongly doubt that consumers will think that the dog toy is actually produced by Jack Daniels, if for no other reason than (1) "a tag affixed to the Bad Spaniels toy
states that the “product is not affiliated with Jack Daniel
Distillery,”" and (2) do you really think Jack Daniels itself would produce a product that says "43% poo by volume?"
So it adds a little levity to the world. It's a parody. It seems classic fair use. And, on balance, the world's a better place with the toy.
The district court nonetheless granted summary judgment to Jack Daniels and permanently enjoined the sale of the toy. Fortunately, the Ninth Circuit reverses.
The opinion doesn't say that for sure the toy doesn't infringe. But I'm hoping that eventually the case comes out that way on remand.
The world could use some more lighthearted squeaky togs these days. Especially for people cooped up in their houses all day with their pets.
