Jack Daniel's Remand, Part III: The Return of the Survey
Michael Keyes
Consumer Survey Expert | High Stakes Trademark & Advertising Litigator | Head of Consumer Insights Group | Subscribe to my Lanham Act Surveys for Lawyers LinkedIn Newsletter
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Jack Daniel's Remand, Part III: The Return of the Survey, Op. 1, No. 49
Herein lies our third (and final) installment discussing the U.S. District Court decision in VIP Products v. Jack Daniel's Properties upon remand from the U.S. Supreme Court.
Recall that in Episode 1 we discussed how the trial court gave "prevailing weight" to Jack Daniel's confusion survey at trial, yet that same court gave that same survey "little weight" upon remand. The trial court (taking its cue from Justice Sotomayor's concurring opinion) expressed concern that Dr. Gerald Ford's survey "may not have accounted for the fact that 'Bad Spaniels' is a parody." VIP Prods. LLC v. Jack Daniel's Props. Inc., No. CV-14-02057-PHX-SMM, 2025 U.S. Dist. LEXIS 11866, at *74 (D. Ariz. Jan. 21, 2025).
In Episode 2, we took a deeper dive into the trial court's stated concern about how the survey may not have accounted for the fact that Bad Spaniel's was a parody. We explained how the Lanham Act, Dr. Ford's survey format, and the underlying survey data did not appear to validate that concern.
Today, we back that up even further by relying on our own consumer survey developed independently of both parties.
We replicated Dr. Ford's survey in all material respects, including the same Ever-ready format and questions. This time, though, we tested the Bad Spaniel's bottle and its modified hang tag that left no room for doubt that Bad Spaniel's intended to communicate to consumers that it was a "parody." The modified hang tag even contained the "correct" answers to the Ever-ready questions:
The results of our replicated Dr. Ford survey?
The overall confusion rates still hovered right around 30%. Thus, as our study shows, even when consumers were explicitly informed that Bad Spaniel's was a "parody" (and explicitly told how to "correctly" answer the Ever-ready survey questions), it simply does not change the overall result and conclusion reached by Dr. Ford nearly a decade ago.
Perhaps Bad Spaniel's isn't the parody it's cracked up to be after all....
We explain our survey findings in a law review article published in the IDEA Journal, the Law Review of the Franklin Pierce Center for Intellectual Property. You can access the article here.
Law Student
6 天前This is really interesting. When I look at the Bad Spaniels toy, it seems like an obvious parody - even without the label. In the last section of your article, you mentioned that "less might be more" when it comes to disclaimers. Have you seen that trend in your survey work? What approach would you take in designing a more succesful disclaimer? I also found question 10 interesting. From a non-expert person who knows little about this, it seems like that question could have been worded in a way that clarifies the emphasis on the business relationship, hopefully producing a result that reflects the consumer response to question 9 in 2023. But maybe the wording of question 10 isn't the problem since the 2015 survey had a lower "Jack Daniels" response on question 10 despite having the same wording. This is really interesting stuff Mike. I'm excited to get the chance to learn more about it over the summer!
General Counsel at Silica-X, Inc.
1 周Really impressive work Mike - congratulations. Our only skiing President would have approved. As you show, labeling disclaimers or parody only work if they work - and parody only works with evocation. What if the hang tag included "What is parodic about it?" "That's up to you, but we chose it to show the effects of obsessive/compulsive behavior across species. (We can't do that without evoking.)"