The term “dog shit” was thrown around several times Wednesday at the venerable U.S. Supreme Court, whose justices appeared baffled by the topic before them: a dog toy that steals the visual codes of the famous Jack Daniel’s whiskey brand. AFP.

The Bad Spaniels toy is sold by VIP Products. It has the distinctive shape of the distillery’s square bottles with black labels complete with scatological jokes.

While Tennessee whiskey is 40% alcohol, Bad Spaniels is allegedly made with “43%” dog excrement and is more likely to end up on “Tennessee carpets.”

The bourbon maker complained that its image had been damaged and sued VIP for trademark protection. After several vicissitudes, the Supreme Court decided to consider the case.

The First Amendment and the “Right to Parody”

The case presents “important questions for the First Amendment” to the Constitution, which guarantees free speech, Justice Samuel Alito explained during the hearing.

The nine justices must decide whether the misappropriation of a trademark for humorous purposes can be considered subject to this right of expression and therefore derogate from the rules of intellectual property.

VIP, who also sells fake cans of Canine Cola, is really hiding behind a parody right that allows cultural copyright infringement.

“We make fun of brands that take themselves too seriously,” “that take themselves as cultural icons,” his lawyer Bennett Cooper explained in the High Court.

“Good idea”

Elena Kagan seemed unconvinced by justice. “I may not have a sense of humor, but how can this be a parody?” she asked. “You’re just saying that, by definition, big business takes itself too seriously…”.

For Jack Daniel’s attorney Lisa Blatt, the problem isn’t whether to understand the parody or whether it’s funny. But it should be “clear that the company that owns the brand was not joking,” she argued.

In this case, she said, there was a risk of “confusion” among customers.