29% of consumers are too dumb to tell the difference between Jack Daniels and dog poo
Conn Carroll
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How many Americans are dumb enough to go to the liquor store looking to buy whiskey, only to come away with a dog toy advertising that it had poop inside?
Twenty-nine percent, according to an expert witness hired by Jack Daniels in a lawsuit against the dog toy maker VIP Products.
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Steven Sacra and his wife were at a bar one night when he had the inspiration to make a dog toy called “Bad Spaniels” that was shaped and colorized like a bottle of Jack Daniels whiskey. In addition to saying “Bad Spaniels” instead of Jack Daniels, the label on the dog toy also says, “the Old No. 2 on your Tennessee Carpet,” “43% POO BY VOL,” and “100% Smelly.”
VIP also makes other fine dog toys, including “Smella R-Crotches,” which looks like a Stella Artois bottle; “Heni Sniff’n” which looks like a Heineken bottle; and “Pissness,” which looks like a Guinness bottle.
There is no record of anyone ever confusing Pissness with Guinness. But that didn’t stop Jack Daniels from worrying that people might confuse their whiskey with actual dog poo. So they sued.
Under the Lanham Act, trademark owners must establish three elements to show someone infringed on their intellectual property: distinctiveness, functionality, and the likelihood of confusion.
VIP did not contest the distinctiveness of the Jack Daniels body shape or that its distinctive shape had no functional purpose. VIP did argue that no consumer would likely confuse their dog toy with an actual bottle of Jack Daniels whiskey.
To establish that consumers would be likely to confuse their whiskey with a dog toy, Jack Daniels hired an expert witness named Gerald Ford (I’m not making this up, that’s his real name). Ford then conducted a survey wherein consumers were shown a series of pictures, including ones of Jack Daniels bottles and the “Bad Spaniels” dog toy. No fewer than 29% of respondents said the “Bad Spaniels” dog toy was “made, sponsored, or approved” by Jack Daniels.
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And that 29% is apparently twice what is required in court to establish a “likelihood” of confusion between two products.
Do we really need intellectual property rights protections so broad that they protect those among us who can’t tell the difference between a whiskey bottle and a dog toy?