The American distillery Jack Daniel's has sued VIP Products because it markets a canine toy called "Bad Spaniels", which resembles its famous square bottles with black label.

The case may seem anecdotal but it will be submitted Wednesday to the rigorous examination of the very venerable Supreme Court of the United States.

The nine Wise Men will have to decide whether the misuse of a trademark for humorous purposes can be considered as a matter of freedom of expression and therefore a derogation from the rules on intellectual property.

If the matter is serious and likely to have repercussions for other companies, the hearing should be punctuated by jokes of more or less good taste.

Beyond the use of his visual codes, Jack Daniel's accuses VIP of having multiplied the scatological jokes on his chewing toy, and of having damaged his own image.

Where Tennessee whiskey has an alcohol content of 40%, Bad Spaniels is made with "43% poop" and may end up on "Tennessee carpets".

"Let's be clear: everyone loves a good joke" but that of VIP is "motivated by greed, and creates confusion among consumers," lamented Jack Daniel's lawyers in an argument sent to the Supreme Court.

The Supreme Court of the United States on February 21, 2023 in Washington © Jim WATSON / AFP

"Freedom to mock"

The bourbon maker, which is owned by listed company Brown-Forman, had taken legal action after the toy went on sale in 2014 to protect its brand. He won his case in a trial court, but suffered a setback on appeal.

He then turned to the Supreme Court and received the support of many companies, including the food giant Campbell, whose soup cans were hijacked by the famous artist Andy Warhol, or the textile groups Patagonia and Levi Strauss.

They argue that they use their brands to promote causes -- environmental or ethical -- and fear that their message will be blurred if misappropriated.

For VIP, however, "freedom of expression begins with the freedom to mock."

"Objects of mockery, satire and parody -- whether government officials, artists, personalities, well-known brands -- bristle at what they perceive as negative, or a loss of control over their image," his lawyers noted in their response to the court. "But this is the price of glory."

The high court must issue its decision by June 30.

© 2023 AFP