A Chew Toy for Dogs Provokes a Spirited Supreme Court Argument

WASHINGTON — In a lively and lighthearted argument on Wednesday, the Supreme Court considered the fate of the Bad Spaniels Silly Squeaker, a chew toy for dogs that looks a lot like a bottle of Jack Daniel’s, with the addition of some potty humor.

Trademark cases generally turn on whether the public is likely to be confused about a product’s source. In the Bad Spaniels case, a unanimous three-judge panel of the Court of Appeals for the Ninth Circuit, in San Francisco, said the First Amendment requires a more demanding test when the challenged product is expressing an idea or point of view.

“The Bad Spaniels dog toy, although surely not the equivalent of the Mona Lisa, is an expressive work” that uses irreverent humor and wordplay to poke fun at Jack Daniel’s, Judge Andrew D. Hurwitz wrote for the panel.

The words “Old No. 7 Brand Tennessee Sour Mash Whiskey” on the bottle are replaced on the chew toy by “the Old No. 2, on your Tennessee carpet.” Where Jack Daniel’s says its product is 40 percent alcohol by volume, the Bad Spaniels toy is said to be “43 percent poo.”

A tag attached to the toy says it is “not affiliated with Jack Daniel Distillery.”

The justices on Wednesday were divided across several dimensions, expressing varied views on whether the toy was a purely commercial product or an expressive one, on whether consumers were justifiably confused about its source, on whether the toy amounted to a parody of the liquor brand and on the role the First Amendment should play in the legal analysis.

Justice Sonia Sotomayor asked whether a political party could sue over a T-shirt created by an activist mocking a trademarked animal logo like a donkey or an elephant.

Lisa S. Blatt, a lawyer for Jack Daniel’s, said the answer turned on whether a substantial number of people were confused about the source of the shirt. “You do have to get permission if it’s confusing,” she said.

Justice Sotomayor disagreed. “They don’t need permission to make a political joke,” she said. “They don’t need permission to make a parody.”

Justice Samuel A. Alito Jr. said that no sensible person would think the Bad Spaniels chew toy was authorized by the liquor company. He imagined a pitch meeting with a top executive.

“Somebody in Jack Daniel’s comes to the C.E.O. and says: ‘I have a great idea for a product that we’re going to produce. It’s going to be a dog toy, and it’s going to have a label that looks a lot like our label, and it’s going to have a name that looks a lot like our name, Bad Spaniels, and what’s going to be purportedly in this dog toy is dog urine,’” Justice Alito said.

The executive, Justice Alito added, was not likely to say: “That’s a great idea. We’re going to produce that thing.”

Ms. Blatt said the test was whether ordinary consumers, not federal judges, would be confused about the source of a product.

“You went to law school,” she told Justice Alito, who graduated from Yale. “You’re very smart. You’re analytical.”

Justice Alito responded that he “went to a law school where I didn’t learn any law.” On the other hand, he said: “I had a dog. I know something about dogs.”

Bennett E. Cooper, a lawyer for the toy’s manufacturer, VIP Products, said consumer surveys cannot be the basis for censoring constitutionally protected expression. “The First Amendment is not a game show,” he said, “where the result is: ‘Survey says I’m confused, stop talking.’”

Justice Elena Kagan said that other cases might present hard questions. But this one, she said, was easy.

“This is not a political T-shirt,” she said. “It’s not a film. It’s not an artistic photograph. It’s nothing of those things. It’s a standard commercial product.”

Ms. Blatt indicated that she did not want to win solely on that ground. The key question, she said, was not whether the toy was commercial but whether consumers were confused about who made it. A ruling limited to the first rationale, she said, would leave important questions unresolved.

“You immediately get into the situation,” she said, “of you’re saying: ‘I will allow a confusing short film but not a confusing commercial; I’ll allow a confusing painting, but I won’t allow a confusing wallpaper; I’ll allow a confusing video game, but I won’t allow a confusing board game; I will allow a confusing tapestry but not a confusing rug.”

In questioning Mr. Cooper, the lawyer for the chew toy’s manufacturer, Justice Kagan said she did not get the joke.

“Maybe I have no sense of humor,” she said. “But what’s the parody?”

Mr. Bennett said the toy poked fun at a brand that took itself too seriously.

That struck the justice as an unduly flexible and forgiving standard. “You make fun of a lot of marks: Doggie Walker, Dos Perros, Smella Arpaw, Canine Cola, Mountain Drool,” she said. “Are all of these companies taking themselves too seriously?”

Mr. Cooper said yes.

At least one other court has rejected a trademark infringement claim against a dog toy, though without bringing the First Amendment into it.

In 2007, the Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled in favor of a company called Haute Diggity Dog, saying it was entitled to sell Chewy Vuiton dog toys that looked like miniature Louis Vuitton handbags.

Judge Paul V. Niemeyer, writing for a unanimous three-judge panel, said the toy “immediately conveys a joking and amusing parody.”

“The furry little ‘Chewy Vuiton’ imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a Louis Vuitton handbag, which must not be chewed by a dog,” he wrote, adding: “The dog toy irreverently presents haute couture as an object for casual canine destruction. The satire is unmistakable.”

Ms. Blatt said that case and the one before the justices, Jack Daniel’s Properties v. VIP Products, No. 22-148, were very different.

“Louis Vuitton makes dog products, but they’re $1,200,” she said. “They’re complete luxury products.”

By contrast, she said, “Jack Daniel’s makes dog products and sells licensed merchandise, like hats and bar stools and what have you, in the same markets that Bad Spaniels was selling its dog toys.”