Tuesday, April 23, 2024

J. Michael Keyes: "Will Bad Spaniels' New 'Disclaimer' Keep VIP Products Out Of The Doghouse?"

Here is the latest literary effort from Mike Keyes, a consumer survey expert and IP litigator at Dorsey & Whitney LLP (you may subscribe to his newsletter here). "Will Bad Spaniels' New 'Disclaimer' Keep VIP Products Out Of The Doghouse? - A Consumer Survey Provides a Cautionary Tale for Would-Be Parodists," appears in Vol. 64, No. 2 (March 2024) of IDEA The Law Review of the Franklin Pierce Center for IP at the University of New Hampshire School of Law. (Link here).

When the trial court first decided the issue of infringement in 2018, it relied heavily on a consumer survey conducted by the late Dr. Gerald Ford. (the “May 2015 Survey”). That survey showed that nearly 30% of the respondents believed there was a connection or affiliation between the famed whiskey maker and the scrappy dog toy manufacturer. When the May 2015 Survey was conducted, VIP Products had a very small disclaimer at the bottom of the back of the hang tag stating “[t]his product is not affiliated with Jack Daniel Distillery.”

Since that time, though, VIP Products has apparently “upped” its disclaiming efforts. In an attempt to further distance itself from “Old No. 7,” the reverse side of the hang tag now prominently states that this toy is a “parody,” that it has no affiliation with Jack Daniel’s, and that consumers should not be “confused” into believing there is a connection between the two companies. In fact, the reverse side of the hang tag goes so far as to provide consumers with the “correct” answers to the original survey questions from the May 2015 Survey.

Mr. Keyes has conducted his own survey to assess the effectiveness of VIP's revised disclaimer. Read his article and you'll find out his conclusions.

Read comments and post your comment here.

TTABlogger comment: Bad Spaniels make bad law, says David Perlsack.

Text Copyright John L. Welch 2024.


At 3:05 PM, Blogger Bob Cumbow said...

I'm a huge supporter of Jack Daniel's tarnishment claim but never thought they had much of a case for likelihood of confusion, and the new disclaimer could make it even weaker.


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