Not Your Average Opinion

 "This case is about dog toys and whiskey, two items seldom appearing in the same sentence."

Justice Kagan writing for a unanimous Court. Jack Daniel's Properties, Inc. v. VIP Products, LLC., 599 U. S. ____ (2023).

Maybe not at her house.

But I'm here not to criticize her writing, or her. I'm not, to put an especially fine point on this, here even to praise her or the Court. I am here to rejoice that in this era of fractious media, of personal attacks masquerading as argument... Of a time when "activists" appear to protest in front of the homes of Supreme Court Justices (illegal), when confidential Court business is leaked to the media in order to mobilize opposition among partisans (probably illegal) and fully all of the members have received death threats (wildly illegal) - that there remains in this land someone willing to display a public sense of humor.

First, and most obvious in this opinion, is the unusual use of - wait for it - pictures displayed in the main body (as opposed to an appendix). Justice Kagan supplies a picture of a Jack Daniel's bottle after having made the following comment:

A bottle of Jack Daniel’s—no, Jack Daniel’s Old No. 7
Tennessee Sour Mash Whiskey—boasts a fair number of
trademarks. Recall what the bottle looks like (or better yet,
retrieve a bottle from wherever you keep liquor; it’s proba-
bly there)

This comment cannot be construed as "Evidence before the Court," because she does not tell you where this comment comes from. It is, rather, "Taking judicial notice" - something so normal and obvious the Court can decide it is true on it's own. It is also circumstantial evidence that Justice Kagan knows from personal, probably first-hand experience.

The bottle's shape, the attached labels and the fonts used to print them... All part of the Jack Daniels trademark. Okay, so the dog toy people came up with this:

 

I think it's clever, but, suggests Justice Kagan:

On the toy, for example, the words “Jack Daniel’s”
become “Bad Spaniels.” And the descriptive phrase “Old
No. 7 Brand Tennessee Sour Mash Whiskey” turns into
“The Old No. 2 On Your Tennessee Carpet.” The jokes did
not impress petitioner Jack Daniel’s Properties.

Much of her opinion is a review of what trademarks are and why they are important to both their owner and the consumer ("They ensure that the producer itself—and not some “imitating competitor”—will reap the financial rewards associated with the product’s good reputation."). She touches on The Lanham Act - Congress's attempt to protect trademarks - and then cites a case that helps...sort of but not really...explain how the First Amendment protects some (but not all) forms of parody.

It is the Rogers case, involving an attempt by actor/dancer Ginger Rogers to protect her trademark - her name - when used in a parody play spoofing her and her longtime dance partner Fred Astaire. Five will get you ten that none of Justice Kagan's law clerks had any idea who those people were. But there she is, a student of pre-WWII motion pictures.

It is a matter of confusing the consumer, writes Justice Kagan. She compares the dog toy, and the possibility Jack Daniel's was somehow involved, with:

[A] consumer would no more think that the song was “produced by Mattel” than would, “upon hearing Janis Joplin croon ‘Oh Lord, won’t you buy me a
Mercedes Benz?,’ . . . suspect that she and the carmaker
had entered into a joint venture (citing Mattel, a case about a Barbie parody song.)

 It's all too much fun. Eventually, she gets to the point - VIP loses, Jack Daniel's wins. You should read the case in full - she's a really good writer.

In honor of Justice Kagan and her eloquence, my dear spouse and I have created the "First Monday in October." 2 oz Jack Daniel's Old No. 7 Tennessee Sour Mash Whiskey, 3 dashes Angostura orange cocktail bitters, 1/4 oz Simple Syrup. Garnish with cherry and a slice of orange peel. Serve in an official Liberty Bell tumbler my wife found on line.

Here's looking at you, kid.