Bad Dogs, Bad Influencers, And More- Hot IP Cases to Watch for in 2021
As 2021 begins—which will hopefully be better than 2020—new trademark, trade dress, and copyright litigation cases have emerged as ones to watch in early 2021. From pet parody products to sneaky influencers, courts will likely have their hands full with IP disputes—from district courts all the way up to even the Supreme Court of the United States.
VIP Products, LLC and Jack Daniel’s got into a bit of a dog fight in 2020, which continued into 2021, due to VIP Products’ line of dog toys titled “Bad Spaniels Silly Squeakers.” Bad Spaniels, a dog toy that takes the form of a dark liquor bottle, closely resembles the aesthetic elements of a Jack Daniel’s bottle design.[1]. For example, instead of Jack Daniel’s bottle which advertises “Old No. 7 Tennessee Whiskey,” Bad Spaniels makes a play on those words and jokes, “The Old No. 2 on your Tennessee Carpet.”[2]. VIP Products, the maker of Bad Spaniels, brought a declaratory judgment action in Arizona, seeking to hear that Jack Daniel’s bottle design and trade dress were not entitled to trademark protection under the Lanham Act.[3]. The District Court decided that Jack Daniel’s bottle design was entitled to trademark and trade dress protection, and there was a likelihood of confusion among the products.[4]. VIP Products then appealed to the Ninth Circuit, which affirmed in part and reversed in part.[5]. According to the Ninth Circuit, Jack Daniel’s bottle was entitled to trademark and trade dress protection, but Bad Spaniels did not infringe because the humorous nature of the product made it an expressive work that was protected under the First Amendment.[6]. Furthermore, Bad Spaniels toys did not dilute Jack Daniel’s trademark, as the expressive, humorous dog toy did not actually qualify as a “commercial” product in this case, despite it being sold online for profit.[7]. Thinking the Ninth Circuit had gone to the dogs, Jack Daniel’s appealed to the Supreme Court, which may soon decide if parody products infringe upon and dilute the value of trademarks or trade dress, or are in fact protected First Amendment speech.[8]. It is possible that the current, more conservative Supreme Court majority will view the Lanham Act through a textualist lens, and determine that Bad Spaniels is in fact a commercial good, and therefore the parody exception does not apply, since this parody is a designation of the source of the goods promoted in commerce.[9].
Bad Spaniels and Jack Daniel’s are not the only ones who have gone barking mad. Danielle Bernstein, popular Instagram influencer and now owner of the brand WeWoreWhat, filed a complaint seeking declaratory judgment in the Southern District of New York to assert that she did not infringe The Great Eros’s copyright for the female silhouette that appears on Eros’s signature wrapping paper.[10].
Furthermore, she asserts that that the human figure is not copyrightable in the first place.[11]. This followed a series of complaints and call-outs on social media against Bernstein,[12] stating that she had purposely copied The Great Eros’s signature female silhouette after she was in contact with the brand, and then manufactured a line of swimwear with a pattern that appeared strikingly similar. [13]. The Great Eros filed a complaint in California, but the complaint was dismissed due to lack of jurisdiction and a case already open in New York, where both businesses are domiciled.[14]. It is possible that Bernstein’s complaint could lead to some very interesting outcomes, since Bernstein alleges that the human form is not copyrightable.[15] It will be interesting to see what the court does, and if this concept will be litigated, which may also lead to even more intriguing outcomes for intellectual property law.
All in all, 2021 has quite an interesting docket lined up just in its early months. The fashion and IP world will certainly have their eyes on these two cases.
Footnotes
