A bottle of Jack Daniel's Tennessee Whiskey is displayed next to a Bad Spaniels dog toy in Arlington, Virginia, on Nov. 20, 2022. Jack Daniel's has asked Supreme Court justices to hear its case against the manufacturer of the toy.
When a trademark claim targets what courts call expressive conduct, judges ask if the use is relevant to the expressive purpose. If yes, courts ask if the defendant explicitly misleads consumers about a connection with the trademark owner. It’s not enough to create a work that reminds people of the trademark holder. That’s the test that Jack Daniel’s wants the Supreme Court to throw away.
This is the logic that gives trademark holders the power to charge monopoly prices for trademarked merchandise — e.g., Boston Red Sox baseball caps — even though no one reasonably thinks that brands are the “source” of merchandised goods. But it’s one thing to allow Jack Daniel’s to control the licensing market for, say, a T-shirt that simply reproduces the company’s logo. It’s quite another to let the company control creativity that refers to Jack Daniel’s or, yes, makes fun of it.
Such a sad state of affairs and waste of resources. Shame on JackDaniels_US You could have totally turned the other cheek and made this enjoyable and fun