Cannabis brands are known for their clever branding and advertising. In some cases, this puts cannabis companies in trouble. See Cannabis Trademark Litigation: Wrigley Wins. Sometimes cannabis companies try to cut the parody line when they riff on an existing brand. See Reminder: The Parody Defense Against Trademark Infringement Is Tricky. As a colleague in cannabis litigation, Jihee Ahnhas explained :
“Parody is a type of speech protected by the First Amendment. It is a “distorted imitation” of an original work for the purpose of commenting on it. Under the right circumstances, parody can be invoked as a defense against trademark infringement.
The United States Supreme Court recently agreed to hear a trademark case involving parody, a maker of squeaky dog toys and Jack Daniel’s whiskey. The case is Jack Daniel’s Properties Inc. v. VIP Products LLC. Jack Daniel’s claims plastic dog toys tarnish its trademark and infringe its trademark rights. The maker of the toy, the Bad Spaniels Silly Squeaker, claims the toy is a humorous parody entitled to First Amendment protection. Here is a visual:
Jack Daniel’s has asked the manufacturer to stop selling the toy. The manufacturer refused and sued for a declaration that the toy did not infringe Jack Daniel’s trademark rights. The district court ruled in favor of Jack Daniel’s and issued an injunction that prevented the manufacture and sale of the squeaky toy. The manufacturer appealed and the Ninth Circuit upheld in part, but concluded that the dog toy is an “expressive work” protected by the First Amendment. He therefore quashed the trademark dilution claim, reversed the trademark infringement judgment, and dismissed.
Jack Daniel’s has appealed to the Supreme Court and numerous companies, such as Campbell’s Soup and Levi Strauss, urged the court to take the case.
The Court is expected to hear arguments in the spring of 2023. So stay tuned for updates on what is likely to be an important parody and trademark notice.
To learn more about cannabis and trademarks, see: