Skip to main content

‘I’m fine with you making stuff up’: Top SCOTUS lawyer sparks fiery exchanges in Jack Daniels trademark case over bottle-shaped dog toy


Left: Attorney Lisa Blatt poses outside the Supreme Court in Washington, D.C. before making her 30th argument before the Supreme Court, a milestone not just for her but for women lawyers arguing before the court. Over the past decade, female lawyers have made about 15 percent of arguments before the court. (AP Photo/Jacquelyn Martin). Right: An image of a bottle of Jack Daniel’s Tennessee Whiskey (L) and an image of a “Bad Spaniels” chew toy for dogs (R) (via federal court filings).

The Supreme Court heard oral arguments Wednesday in a major intellectual property case involving a dog chew toy, Jack Daniels whiskey, and a fake liquor label advertising its product as “43% poo.”

Dog toys and scatological references notwithstanding, the case promises serious implications for the future of parodies within the legal world of intellectual property.

Spirits giant Jack Daniels sued VIP Products for trademark dilution based on a rubber dog toy shaped like a bottle of Jack Daniels whiskey featuring a label that read, “Bad Spaniels, the Old No. 2, on your Tennessee Carpet.” The bottom of the toy continues the fecal theme with the words “43% POO BY VOL.” and “100% SMELLY.”

A photo of the two products can be seen below.

An image of a bottle of Jack Daniel's Tennessee Whiskey (L) and an image of a chew toy for dogs (R)

An image of a bottle of Jack Daniel’s Tennessee Whiskey (L) and an image of a chew toy for dogs (R), via court documents.

The toy’s packaging specifically denies any affiliation with Jack Daniels, but the whiskey maker says there is still a risk that consumers may get confused and think that the two are linked, which would dilute the Jack Daniels brand. VIP products argues that it has a First Amendment right to parody a brand even when the owner of the brand dislikes it.

Taking center stage during Wednesday’s arguments was attorney Lisa Blatt, who argued on behalf of Jack Daniels. Blatt is a familiar face to the justices, having argued at least forty cases before the Supreme Court — more than any other woman in history — and has won in more than 80% of those cases.

As Blatt argued that her client has a right under the Lanham Act to be protected from having its product “associated with dog poop,” she brought an unusual demeanor to the courtroom that was as brash as it was casual.

When Justice Ketanji Brown Jackson suggested an analytical framework that was “cleaner” and “more consistent with the statute,” Blatt retorted: “I’m fine with you making up stuff.”

“No, I’m not making it up,” Jackson responded. She then referred to handwritten notes in which the justice captured Blatt’s earlier argument.

Blatt doubled down on her position, ostensibly schooling Jackson: “Sorry, but in trademark law you can have a very confusing use of a trademark…”

I’m sorry, Ms. Blatt,” Jackson interrupted, before continuing to press the attorney on the significance of brand confusion in trademark claims.

Almost immediately, the internet noticed the awkward exchange between the two women, with some calling Blatt’s comments to the justices “rude” and “condescending.”

Justice Sonia Sotomayor did not appear inclined to gloss over Blatt’s “making up stuff” comment, opting instead to bring clarity and context to the lawyer’s thinly-veiled suggestion that at least some of the justices were improvising their jurisprudence.

Sotomayor reminded Blatt that when it comes to interpreting a statutory standard, judges “have to figure out” and “have to create some principles.”

“All these tests are judicially-crafted,” Sotomayor said, using a somewhat more nuanced framing than what Blatt’s “making stuff up” implied.

Sotomayor also presented a hypothetical that the justices would go on to bat around for the next hour: an activist who uses a drunken version of either the Democratic donkey or the Republican elephant logo on a shirt along with the slogan “time to sober up, America.”

Blatt responded with more of the same unusual level of familiarity.

“First of all, that’s funny. I’m going to give you that,” she said to Sotomayor. “Second, funny is not relevant.”

When Sotomayor interjected during Blatt’s follow-up argument, Blatt snapped: “I’d like to get this answer out. It’s not about whether you get the joke. It’s whether it’s confusing about who made the joke.”

When Justice Samuel Alito joined the fray, he asked whether any reasonable person could possibly think Jack Daniels approved the dog toy.

“Absolutely,” replied Blatt without hesitation. “That’s why we won below.”

“Really?” replied Alito incredulously.

Blatt was undeterred.

“Justice Alito, I don’t know how old you are, but you went to law school, you’re very smart, you’re analytical, you have hindsight bias,” the lawyer said.

“Well I went to a law school where I didn’t learn any law,” Alito joked, interrupting Blatt and earning uproarious laughter in the courtroom.

Blatt, though, sidestepped any chuckles in favor of doubling down on her argument and suggesting that judges on the nation’s highest bench are out of touch with everyday shoppers.

“It’s  just a little rich for people who are at your level to say that you know what the average purchasing public thinks about all kinds of female products that you don’t know anything about, or dog toys that you might not know anything about,” Blatt said.

“I don’t know,” Alito said, laughing in protest. “I had a dog… I know something about dogs.”

Court listeners were quick to call attention to the exchange, with one calling the Alito-Blatt colloquy “controlled chaos.”

When Solicitor General Matthew Guarnieri and attorney Bennett Cooper took the podium on behalf of the federal government and the dog toy manufacturer, the mood in the courtroom returned to a more typically subdued state.

As an attorney with prolific experience and overwhelming success before the high court, Blatt enjoys a level of familiarity and ease with the justices reserved for only the narrowest category of elite lawyers, even warning them at one point during oral argument: “You’re much better off cleaning this doctrine up.”

Still, as one attorney pointed out via Twitter, Blatt has something of a counterpart in Solicitor General Elizabeth Prelogar, who is also a regular advocate in Supreme Court cases known for her impeccable courtroom decorum. Both women have enjoyed remarkable success before the Court, underscoring that there are several ways to win a Supreme Court case.

Lisa Blatt is like the exact opposite advocate of Elizabeth Prelogar. Goes to show, I suppose, that there is no one path to stratospheric success in oral argument.

You can listen to the full oral arguments here.

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos