"The U.S. Supreme Court has agreed to decide whether a parody dog toy called “Bad Spaniels” is entitled to protection from trademark infringement and dilution-by-tarnishment claims by Jack Daniel’s Properties Inc.

The Supreme Court agreed Nov. 21 to review a decision by the 9th U.S. Circuit Court of Appeals at San Francisco that said dog toymaker VIP Products was entitled to First Amendment protection because the dog toy was an expressive work.

The decision made it more difficult for Jack Daniel’s to win on the infringement claim and barred the company’s claim for dilution by tarnishment.

The Bad Spaniels dog toy is shaped like a Jack Daniel’s bottle, according to the 9th Circuit decision. The Jack Daniel’s label says, “Old No. 7 Brand Tennessee Sour Mash Whiskey;” the label on the Bad Spaniels toy replaces that with the phrase: “the Old No. 2, on your Tennessee Carpet.”

Jack Daniel’s is asking the Supreme Court to decide two issues: whether humorous use of the trademark on a commercial product entitles VIP Products to heightened First Amendment protection on an infringement claim and whether humorous use of the trademark is a noncommercial use that cannot be subject to a dilution-by-tarnishment claim."

This article was originally posted in the ABA Journal.

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