 News Radio 700 WLW. All right, back with Eddie and Rocky and Rocky, you know, when you think about the Supreme Court, you think about, you know, freedom of religion, abortion, all that crazy stuff, that stuff that tears the nation asunder. And then you hear about stuff like this that they're trying to press through the Supreme Court. And you don't know that stuff happens, but it happens too. So I guess the Supreme Court is getting ready to hear a case involving Jack Daniels, who has taken a dog toy company to court claiming they make their dog toy look too much like a Jack Daniels bottle. And yes, you're right to think that this is at the Supreme Court is mind boggling, but very true. Well, let's talk to our good friend, the patent professor. It is our good friend, John Risvian. Hey, John, how does something like this go? It's not before, didn't it get rejected once, but they're pressing it again, eh? It did. Always a pleasure to be here, and I couldn't have been for a crazier case than this. But I guess the intellectual property is getting more and more interesting day by day. So, they did, they're looking at the similarity, I mean, Jack Daniels, of course, is claiming that it's a dilution of their trademark rights. And the reason it's gotten all the way to the Supreme Court is there's essentially a need for guidance as to where the Commerce Clause, the right for Congress to regulate commerce, where that stops and the First Amendment rights to free speech start. So that's really what they're asking the court to assist with. I mean, the maker of the dog toy is claiming that it's expressive speech and that the trademark rights are unfairly infringing on a parody. Essentially they're saying it's a joke. Before we get ahead of ourselves, and I think we explained that, that it's a dog toy shaped like a little Jack Daniels bottle, and it's the same labeling and such, but everything on there has to do with like your dog pooping on your rug and stuff. Yeah, instead of old number seven brand Tennessee Sour Mask Whiskey on the bottle, it says the old number two on your Tennessee carpet. It's very tongue-in-cheek. Bad Spaniels instead of Jack Daniels, yes. Yeah, Bad Spaniels and then instead of 40% alcohol by volume, it's 43% poo. Jack Daniels doesn't clearly does not think this is funny. They believe, you know, and partly they're saying that consumers are not really, there's not a lot of reading of the text that people see the font, they see the shape of the bottle, the impression is the same, and it's confusing consumers that's part of their take. So John, to me, this is the big question. I don't think there's any question that this Bad Spaniels company made their toy purposefully to look like a Jack Daniels, but if they claim otherwise, I don't know if they have any ground to stand on, but how much is, I mean, how much, how alike does it have to be? Is it, is there a number amount? Well, three things are similar, five things. If it was looked like the Jack Daniels bottle, but didn't have, didn't make the label look quite the same. I just feel like there's got to be a tipping point of what's okay versus, okay, now you've gone too far and you're making it look too much like our, in this case, Jack Daniels bottle. Yeah. So unfortunately, there's no, there's no like number or mathematical percentage or anything like that. It's, it's comes down to consumer confusion, like here, I don't think, I don't think it's going to be a really tough to show that consumers are actually confused. It looks, you know, it's actually confused. Nobody's going to try to drink from the dog toy or such a similar case comes to mind where the court held that it was clear parity and it's, it's, it's very similar in the sense that it's also a dog toy, chewy Vuitton, and it's a chewable dog toy in the shape of a purse. So and, and that was found not to be, not, not, not to violate any trademark rights. And, you know, and to the extent as to why Jack Daniels is, is, is enforcing this are trying to enforce it. A lot of there's a duty on trademark holders to enforce their marks and to police them, so to speak. And if they don't do that, then they, their rights become diluted, it makes it harder. So part of it might be that they're simply going through and making trying to make sure that they take the appropriate steps to diligently try to protect their IP. It's, it's, it's not, I don't know, I don't have any, I've just run some informal surveys on, on our own patent professor social media pages and it's almost 100% in favor of the dog toy saying that, that Jack Daniels is needs to lighten up and get a sense of humor. So I think in the court of public opinion, it's certainly not to their benefit to, to push this. And when you talk about parody, it wouldn't this affect like if Jack Daniels would win, say, wouldn't that affect whatever, a TV show, what, a Saturday night live does a fake commercial with the something like this, couldn't they sue them if it seems like this could just really chase its tail for a while? It does. And in fact, but you know, on the other hand, the concern is if all a potential infringer has to do is, you know, it'd be funny to get around someone's trademark rights. That's, that's the opposite extreme that parody should not be, be used to disparage a mark or kind of dilute the strength of a trademark. So it is a delicate balancing act that that has to be done. There's prior case law ties it to expressive, expressive expression. And, and it, you know, the question is, you know, the more it's a commercial product, the less the free speech aspects kick in. And this is a little bit tougher than the earlier case law. This is clearly a commercial product. It's not, it's not a movie. It's not a play. It's not, you know, somebody doing the free speech in the, in the traditional sense of, of, of a parade or a public gathering where they're talking about it. This is a commercial product for profit and, and then they have to, you know, the Supreme Court is going to help draw the line as to where that line is between a First Amendment right to free speech and to parody and where trademark law prevents that because clearly there is, there are restrictions on free speech. I mean, the constitutional practice free speech doesn't prevent a lot of, doesn't prevent hate speech, doesn't allow someone to go into theater and yell fire. There's restrictions on free speech and whether the trademark rights and Lanham Act is going to kick in and prevent parody of, of trademarks and how much. Well, and John, as you're describing this, I see both sides here. I see where, you know, the dog toy company is like, and probably other people are like, come on, you're Jack Daniels. You're this behemoth. They could even make the argument that it looks a little bit beneath Jack Daniels to go after a dog toy company. But I see the other side, which is they're saying, hey, if we continue to let this go on, what's next? And then all of a sudden we're, you know, people kind of see us as like a gag or like, no, we're like a serious, you know, tried and true American whiskey company here, you know. So I remember when we talked to you about Elvis and it's like, okay, what's a big deal if someone wants to be an Elvis impersonator or, you know, do the wedding themed Elvis and all that. And remember you're saying the family doesn't want the real brand of Elvis to be diluted. Could you not make the case that this is something similar with how Jack Daniels is handling this? Well, that, yeah, certainly. I mean, they don't want their whiskey associated with Dom Poo. So I can see, you know, I can certainly see that. You said it much more succinctly than I did, yes. I mean, especially, I mean, if they had to pick, if they were allowed to take a Sharpie and cross out anything on this label, I think the 43% Poo would be one of the things that get crossed out on it. But yeah, so that's a big part of it. They're also claiming, and I think this may be a little bit far-fetched, that they are trying to, it's an adult product, whiskey, and that it's making it harder for them to not market the kids because pet toys or something kids play with and that kids are not going to be introduced to alcoholic beverages. That part just seems kind of bizarre. And in fact, the dog toy company responded and said, you know, the only people that are really, if you're eight-year-old is recognizing a bottle of Jack Daniel's whiskey is the dog toy that he already knew about the whiskey. We're not, we're not, we're not. Why is, why is Fluffy drinking daddy's special drink? Exactly. So if your six or eight-year-old are making the connection, they already had made the connection prior to the dog toy. They knew about the Jack Daniel's whiskey. So no, this is not, the dog toy is not promoting underage drinking or like any of these kind of bizarre arguments that I've seen. But like I said, this is a strange case on all fronts. And it's been an important case because it's really going to determine the rights of trademark owners going forward and how strong protection they can get and stop in stopping parodies versus how much leeway being funny is going to allow, you know, commercial products. Like, can you get the commercial product is funny enough? Can you then basically parody anything and make a profit? It's under the guise of free speech. So with that, John, let's finish up with one last question. The obvious one is, do you see Jack Daniels winning this? Well, I think they can. It would have to, they would have to tie it somehow specifically, very fact specific, because the big risk, I think in a case like this would be, you know, the impact on other trademark holders. So if they tie it really specifically to facts, that would be a possibility. Only because, you know, but I don't know, it's a tough call. Because I mean, if that's the case, then then the chewy beton is makes a pretty strong argument as well, you know, but they didn't go all the way to the Supreme Court. So again, that's a lower court decision. I got to say, I think chewy baton defeats bad Spaniels. That's funny. It's pretty good. John Rizvi, always a pleasure, buddy. Thank you so much. The patent professor, people want to find out more. Where can they go? I do believe it is the patentprofessor.com. Is it not the website, the patentprofessor.com and we're everywhere on social media as a patent professor, Instagram, Facebook, LinkedIn, TikTok, you name it. All right, buddy. Thanks so much. Thank you.