We need some light-hearted news, so let me tell you about an amusing case the Supreme Court heard this week. The stakes sound (and, I suppose, are) serious: the extent to which the right of trademark protection must give way to the right of free expression. But the facts of the case involve a parody dog toy, “Bad Spaniels,” a squeaky chew thingy in the image of a bottle of Jack Daniel’s bourbon — although, rather than the Old No. 7 Tennessee Sour Mash Whiskey, the Bad Spaniels knock-off boasts that it runneth over with, well, “Old No. 2” (“43 percent poo” by volume).
The pup product peddler pleads that it is practicing First Amendment-protected parody, mocking the self-importance of Big Liquor. But an attorney for Jack Daniel’s insists that normal people could be fooled into thinking that it is the source of this less-than-dignified toy, a claim that seemed to leave Justice Sam Alito skeptical, to put it mildly. The lawyer, Lisa Blatt, pushed back, stressing that the legal test is what the average person, not the average federal judge, would believe. The back-and-forth resulted in this priceless exchange, as reported by the New York Times’s Adam Liptak:
“You went to law school,” [Ms. Blatt] told Justice Alito, who graduated from Yale. “You’re very smart. You’re analytical.”
Justice Alito responded that he “went to a law school where I didn’t learn any law.” On the other hand, he said: “I had a dog. I know something about dogs.”