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The Supreme Court on Thursday sided with Jack Daniel’s in a trademark fight with a company that recast the whiskey’s well-known bottle as a squeaky, chewable dog toy, associating the alcohol with poop.

In a <a href="https://www.supremecourt.gov/opinions/22pdf/22-148_3e04.pdf" target=_blank>narrow, unanimous ruling</a>, the justices sent back to a lower court the case testing the line between trademark protections and free-speech rights.

As she announced the opinion from the ornate, hushed courtroom, Justice Elena Kagan held up the Bad Spaniels chew toy at issue from the bench, soliciting laughter from the audience and smiles from her colleagues.

“This case is about dog toys and whiskey, two items seldom appearing in the same sentence,” Kagan wrote in the 20-page ruling, featuring color photos of the toy and its cardboard tag, which says it is “not affiliated with Jack Daniel Distillery.”

To further make her point with another example, Kagan went on to sing a few lines from the song “Barbie Girl” — “Life in plastic, it’s fantastic” — the subject of an earlier trademark dispute with the toymaker Mattel.

In case involving whiskey and a dog toy, Supreme Court misses the joke

The ruling was one of four the justices issued as <a href="https://www.washingtonpost.com/politics/2023/05/11/supreme-court-decisions/" target=_blank>they race to complete the term</a> before the end of the month. In a separate opinion Thursday, the court upheld the right of individuals to sue state-owned nursing homes for violations of federal law.

The Jack Daniel’s case began in 2014 when VIP Products owner Steven Sacra added a parody of the whiskey’s black-label bottle to his line of Silly Squeakers dog toys mimicking other beverages, such as Corona beer and Mountain Dew soda. Instead of “Old No. 7 Tennessee Sour Mash Whiskey,” the toy declares: “Old No. 2 on your Tennessee carpet.” According to its label, Bad Spaniels is “43% POO BY VOL.”

Jack Daniel’s, which owns trademarks in the distinctive bottle, objected to the joke and told the company to stop. The parody, the company said, undermined those trademarks by allowing customers to think Jack Daniel’s had created the toy.

A district court ruled for the whiskey company and found consumers were likely to be confused about the source of the toy.

But the U.S. Court of Appeals for the 9th Circuit reversed that decision, saying the lower court did not take into account the parodic nature of the product. The appeals court judges relied on a ruling sprung from a dispute involving Ginger Rogers over a Federico Fellini film, and said Bad Spaniels is “an expressive work entitled to First Amendment protection.”

Tracking Supreme Court decisions in this term’s major cases

The high court reversed Thursday and said that rule does not apply in this case. The justices said the parody was not entitled to special First Amendment protection in part because the dog toy company, VIP, had copied Jack Daniel’s features as its own identifiers.

“It is not appropriate when the accused infringer has used a trademark to designate the source of its own goods—in other words, has used a trademark as a trademark,” Kagan wrote. “That kind of use falls within the heartland of trademark law, and does not receive special First Amendment protection.”

Trademark law, Kagan said, is about avoiding consumer confusion about the source of a product.

“VIP uses the marks at issue in an effort to ‘parody’ or ‘make fun’ of Jack Daniel’s,” Kagan wrote. “And that kind of message matters in assessing confusion because consumers are not so likely to think that the maker of a mocked product is itself doing the mocking.”

The case is Jack Daniel’s Properties v. VIP Products.

Right to sue publicly owned nursing homes

In <a href="https://www.supremecourt.gov/opinions/22pdf/21-806_2dp3.pdf" target=_blank>a 7-2 decision</a>, the court affirmed that patients in government-run nursing homes and other Medicaid beneficiaries may file lawsuits in federal courts over violations of their rights.

At issue were provisions of law that created protections for nursing home residents to be free from unnecessary chemical or physical restraints and to be transferred only under certain conditions. The Health and Hospital Corporation (HHC) — owned by Marion County, Ind. — argued that because the law involves a congressional spending program that creates benefits and obligations between states and the federal government, nursing home patients are not parties to the contract and cannot sue to enforce their rights.

Writing for the majority, liberal Justice Ketanji Brown Jackson said the text of the statute makes clear that patients can invoke post-Civil War protections that allow individuals to sue state officials in federal court for civil rights violations.

“‘Laws’ means ‘laws,’ no less today than in the 1870s,” wrote Jackson, who emphasized the text of <a href="https://www.law.cornell.edu/uscode/text/42/1983" target=_blank>the law known as Section 1983</a>, history and past precedent in the case.

“We have no doubt that HHC wishes §1983 said something else. But that is ‘an appeal better directed to Congress,’” she wrote, quoting an earlier opinion from conservative Justice Neil M. Gorsuch. “Hewing to §1983’s text and history (not to mention our precedent and constitutional role), we reject HHC’s request, and reaffirm that ‘laws’ in §1983 means what it says.”

Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

Alito said the law puts states in charge of policing nursing home violations and limits federal remedies.

That law, establishing minimum standards for nursing homes, “creates a clear division of authority that ensures States retain their historical control over nursing-home regulation,” wrote Alito, joined by Thomas. Allowing such civil rights lawsuits, he added, “will upset this balance by allowing any plaintiff to demand damages regardless of the remedial regime that States establish pursuant to their explicit authority.”

Advocates called the decision a significant ruling for the rights of millions of Medicare beneficiaries, including people with disabilities who rely on federally funded health care, in addition to nursing home patients.

The case was brought by the family of Gorgi Talevski, whose condition worsened after he moved into an Indiana nursing home for dementia care in 2016. He could no longer talk, walk, feed himself or recognize his family. His relatives learned that Valparaiso Care and Rehabilitation had prescribed a half-dozen powerful psychotropic medications as part of his care. Talevski’s family filed a formal complaint.

Later, after the home tried to permanently transfer Talevski to a different facility without first notifying him, Talevski’s family sued.

The district court dismissed the case. A unanimous panel of the U.S. Court of Appeals for the 7th Circuit reversed and sided with the family, finding that the law’s provisions “unambiguously confer individually enforceable rights on nursing-home residents.”

Talevski passed away after the appeals court ruling, but the lawsuit will continue in the lower court.

The decision “safeguards the rights of thousands of nursing home residents nationwide to be free from mistreatment and abuse,” Andrew Tutt, the family’s lead lawyer in the appeal, said in an email. “As a result of this decision, nursing homes can no longer deny the rights of elderly nursing home residents with impunity.”

The case is Health and Hospital Corporation of Marion County v. Talevski.

Robert Barnes contributed to this report.

Nieman fellow, Harvard University

Cornell University

Ann Marimow covers the Supreme Court for The Washington Post. She joined The Post in 2005, and has spent a decade writing about legal affairs and the federal judiciary. She previously covered state government and politics in California, New Hampshire and Maryland.

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Supreme Court rules for Jack Daniel’s in fight over poop-themed dog toy

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