Parody (and Dog Toys) as Art

Richard Rimer

February 16, 2023

The most recent blog post mentioned that both technology and freedom of expression have changed brand protection in the past 20 years.  It doesn’t help that these two areas often butt heads.

The post explained that Hermes successfully stopped someone from selling MetaBirkins—NFTs that looked like Birkin bags.  While that is true, I’m waiting on the appeal.

This summer the Supreme Court should decide a case that may provide a great defense—parody.  The high court will decide whether a company that sells dog toys is infringing the rights of Jack Daniels Distillery.  No, I have not been drinking.

Jack Daniels sued a company that sold stuffed toys that look like a bottle of Jack Daniels. The toy had “Bad Spaniels” written where “Jack Daniels” would normally appear and the classic line “the Old No. 2 on your Tennessee Carpet.”  The toy company won.  The lower court held that the Rogers Test allows the toy company the right to use Jack Daniels’ branding. Reminder, I have not been drinking.

The Rogers Test applies the First Amendment and ignores the normal “likelihood of confusion” analysis.  Under this, Jack Daniels had to show the dog toy’s use of “Bad Spaniels” either (1) was “not artistically relevant to the underlying work” or (2) “explicitly misleads consumers as to the source or content of the work.”  This test normally applies to artistic uses of brands, but the Supreme Court will decide if this test also applies to parodies.  Watch this space!

Conventional wisdom holds that if Jack Daniels loses, this means the Rogers Test has been expanded.  If this happens, the NFT owner will surely appeal its loss to Hermes.