Twenty-nine percent of survey participants mistakenly thought that Jack Daniel’s “had made, sponsored, or approved” the Bad Spaniels squeak toy. The crucial factor appears to have been an internet-based survey conducted by an expert hired by Jack Daniel’s. Nonetheless, after a bench trial, the district court judge found that there is a likelihood of confusion based on a multi-factor test derived from prior precedents. Only especially naïve shoppers will be confused into thinking that, in addition to distilling and distributing whiskey, Jack Daniel’s has branched out into selling dog toys that parody its own most valuable product. 2,” “on your Tennessee carpet,” and (in small print at the bottom) “43% POO BY VOL.” are all clearly poop jokes. But, at the risk of belaboring the obvious, there are some notable differences: Bad Spaniels is a pink plastic squeak toy for dogs sold in pet stores, not a glass bottle filled with amber-colored whiskey sold in liquor stores there is a prominent picture of a dog on the squeak toy but not the whiskey bottle and “Old No. True, Bad Spaniels rhymes with Jack Daniels, and the two products are roughly the same size and shape. Right from the start, it is difficult to see how there could possibly be a likelihood of confusion about the nature or origin of “Bad Spaniels.”
To succeed on a Lanham Act claim like the one currently before the Court, a plaintiff must show that the appearance of the defendant’s product “is likely to cause confusion” about whether there is an “affiliation, connection, or association” with the plaintiff.
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