Is It Parody or Is It Infringement?

There’s a fine line in intellectual property law when it comes to parodies. Parody is an often used stylistic choice in media and commerce to take advantage of a known name, image, or likeness to sell a product that has a similar or mirrored likeness with a humorous lean. Weird Al Yankovich made a living off of it in the music industry while movies like Scary Movie and Austin Powers famously poked fun at horror films and James Bond films respectively.

But, when does parody become infringement? It’s a complicated question to answer, because case law varies, and the way certain laws and judgments are applied shifts depending on the court venue. There’s one case in particular that highlights the fine line of parody-related intellectual property cases: Jack Daniel’s Properties v. VIP Products

“Bad Spaniels” Jack Daniel’s Parody Rejected

A notable case that caught the attention of intellectual property attorneys everywhere was Jack Daniel’s Properties v. VIP Products. The famous Tennessee-based whiskey maker contested a design from VIP Product’s line of dog chew toys that closely resembled their famous bottle design.


In this case, the Supreme Court firmly rejected the Bad Spaniels design, using a similar size, shape, font, and label design. The Supreme Court ruling heavily references Rogers v. Grimaldi in stating that a First Amendment infringement defense can’t apply to an infringement where the source designation is the infringing element. The lower court applied Rogers to defend Bad Spaniels’ design, but the Supreme Court, which has not come out firmly in favor of Rogers in the past, says the First Amendment defense was applied in contrary to the facts of the case.

What This Case Means

You go into any dog store and you’ll see dozens of toys that are reflective of other products, but the line here comes from the source of the work. The Bad Spaniels design’s parody of Jack Daniel’s creates possible confusion surrounding the source of the product. A parody is permitted to be adjacent to the work it references, but it needs to be clear that the source of the work is separate from its reference.

Why Should Jack Daniel’s Care?

One of the discussions surrounding this case centers on the idea that Jack Daniel’s is so big and successful that it shouldn’t care about a dog toy parodying their work. We don’t want to assume anything about the intention of Jack Daniel’s, but intellectual property law specifically requires companies to defend their IP registrations if they want to maintain those registrations long-term.

If you have a product that holds IP protection but fail to proactively file claims against infringing parties, the U.S. Patent and Trademark Office reserves the right to consider your IP registration abandoned. If the market is flooded with similar designs and concepts then the consumer has no reasonable expectation to know who the original author of the work is.

Protect Your Innovation With McDermott IP Law

At McDermott IP Law, we are regularly keeping an eye on major cases like this to get a better understanding of how the courts apply relevant case law. Defending your intellectual property is a necessary element of running a successful business and entrepreneurial venture. We’ve seen these cases go both ways due to the fine lines often drawn in intellectual property cases. To better defend your innovation, contact McDermott IP Law today.

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