The United States Supreme Court heard arguments on Wednesday in a closely watched trademark dispute between Jack Daniel’s and a dog accessory company behind a parody chew toy resembling the distiller’s well-known black-label whiskey bottle.

Some justices questioned the whiskey maker’s request that they abandon a long-standing legal test that allows for an early exit from costly litigation when parody items face trademark infringement challenges. The debate was still going on.

Brown-Forman Corp. of Louisville, Kentucky owns Jack Daniel’s Properties Inc.

In this case, a parody Jack Daniel’s Old No. 7 Tennessee whiskey bottle with dog poop-themed changes, like a label reading “the Old No. 2, on your Tennessee Carpet,” by Phoenix-based VIP Products LLC, is at the center of the legal dispute between the whiskey brand’s trademark rights and legal protections for creative expression.

“Could any reasonable person think that Jack Daniel’s had approved this use of the mark?” conservative Justice Samuel Alito asked an attorney for Jack Daniel’s.

Jack Daniel’s is contesting a lower court’s decision that the pun-filled “Bad Spaniels” vinyl chew toy is a “expressive work” covered by the First Amendment of the United States Constitution.

Whether VIP Products should be protected from liability for alleged harms its chew toy poses to Jack Daniel’s by possibly misleading consumers into associating the product with the whiskey maker or tarnishing the company’s well-known trademark is at issue.

Industry groups that support the 1866-founded whiskey brand from Lynchburg, Tennessee, have claimed that the dispute has significant implications for corporate America’s ability to protect its brands and reputations.

A group of 2,300 authors disagreed, arguing that a victory for Jack Daniel’s could have a “catastrophic chilling effect” due to concerns that free speech might result in legal action.

In 2020, the 9th U.S. Circuit Court of Appeals in San Francisco upheld VIP Products’ position on two different grounds. The Bad Spaniels toy may be protected by the First Amendment under the 9th Circuit’s ruling that it was a “expressive work” and therefore not infringing on Jack Daniel’s trademark.

On this issue, the 9th Circuit sent the case back to a federal judge in Arizona for further proceedings with the directive to use a legal standard derived from a famous trademark dispute between actress Ginger Rogers and director Federico Fellini in 1989. The “Rogers test,” which permits artists to lawfully use another’s trademark when doing so has artistic relevance to their work and would not explicitly mislead consumers about its source, was used by the judge in favor of VIP Products.

Additionally, the 9th Circuit determined that VIP Product’s use of the Jack Daniel’s trademark was noncommercial because it was done “to convey a humorous message” in addition to selling dog toys, protecting the distiller’s distinctive mark.

The administration of President Joe Biden supports Jack Daniel’s appeal.

(Adapted from CNBC.com)