Jack Daniel's Remand, Part II: Does the Consumer Survey Data Validate the Trial Court's "Parody" Concerns?

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Jack Daniel's Remand, Part II: Does the Consumer Survey Data Justify the Trial Court's "Parody" Concerns?, Op. 1, No. 46

Last week, we discussed why the trial court on remand gave "little weight" to a consumer survey showing a "net" confusion rate of 29% caused by Bad Spaniel's mimicry. The trial court was persuaded by Justice Sotomayor's concurring opinion in Jack Daniel's Props. v. VIP Prods. LLC, 599 U.S. 140, 164 (2023).

Therein, Justice Sotomayor opined that, "[s]urvey answers may reflect a mistaken belief among some survey respondents that all parodies require permission from the owner of the parodied mark." Id. She observed that some of the answers to the survey in this case apparently illustrated this "potential." Id. (citing two survey respondent answers stating, "I’m sure the dog toy company that made this toy had to get [Jack Daniel’s] permission" and "[t]he bottle is mimicked after the Jack Daniel BBQ sauce. So they would hold the patent therefore you would have to ask permission to use the image”).

But is this "approval" concern justified based on the text of the Lanham Act and the survey data in this case?

There are some pretty compelling arguments that the answer is "no."

For starters, among the causes of action alleged, Jack Daniel's asserted a claim for violation of Section 43(a) of the Lanham Act, and that statutory provision expressly refers to "approval." It states that liability can attach to a party--here, VIP Products--who uses a mark in a way that is likely to cause confusion, deception, or mistake "as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person." 15 U.S.C § 1125(a)(emphasis supplied). Thus, confusion as to "approval" is potentially actionable under the Lanham Act--Congress baked that into the statutory scheme.

Next, the late, great Dr. Gerald Ford designed the consumer survey at issue in this case that was presented at trial (and was before the trial court on remand). He used the standard "Eveready" format. While his survey did ask respondents if they believed Bad Spaniels "is being made or put out with the authorization or approval of any other company or companies," see Dr. Ford's Report, p. 15 (question no. 9.0), that was not the only question put to respondents. Respondents were also asked:

• Who or what company do you believe makes or puts out this product? (question no. 7)
• What other product or products, if any, do you believe are made or put out by whoever makes or puts out this product? (question no. 8)
• Do you believe that whoever makes or puts out this product... has a business affiliation or business connection with any other company or companies? (question no. 10)

Thus, respondents were queried using the variety of Eveready metrics to test whether there was potential confusion, deception, or mistake. Only one of those questions--question no. 9--specifically asked about "approval" or "authorization."

Finally, a review of the actual survey data and verbatim responses in Dr. Ford's report shows significant confusion as to "source," with seemingly little confusion that the alleged parody needed Jack Daniel's "approval." Allow us to explain.

The "test" cell consisted of 211 respondents. Ford Report, p. 18. 62 of those respondents answered "Jack Daniel's" in response to at least one of the "confusion" questions set forth in nos. 7-10. Id. Thus, 29.38% of the respondents expressed some sort of confusion (62 ÷ 211 = 29.38%).

23 of those 211 respondents (or 10.9%) answered "Jack Daniel's" to only question no. 9--the "approval or authorization" question. And, only one of those respondents articulated that Bad Spaniels would need permission to create a "spoof." Ford Report, p. 19 (respondent no. 1001). The remaining 22 respondents articulated verbatim responses focusing on the similar names, bottle shapes, or label designs--all hallmarks of "source identification."

But, for the sake of argument, lets isolate the 23 respondents who answered "Jack Daniel's" in response to question no. 9 (but to none of the other questions). We would do this to address Justice Sotomayor's concern and, thus, assume that each of these 23 respondents must have: (a) perceived Bad Spaniel's as a parody; and (b) believed VIP Products had to obtain Jack Daniel's permission to create the parody. That still leaves 39 out of 211 respondents (or 18.4%) that expressed confusion in response to the other questions in Dr. Ford's survey. That's an appreciable amount of confusion, regardless.

The Takeaway. Justice Sotomayor's concurring opinion expressed concern that surveys could be used by companies in such a way to give them "an effective veto over mockery." The Lanham Act, Dr. Ford's survey format, and the underlying survey data do not appear to validate that concern here.

Dr. Ford's survey report from 2015 can be found here.