The US Supreme Court Wednesday heard oral arguments in the case of Jack Daniels Properties, Inc. v. VIP Products, LLC. Jack Daniels Properties, Inc. (JDPI) claims an excrement-themed dog toy sold by VIP Products, LLC. (VIP), which closely resembles its Old No. 7 Tennessee Whiskey, violates the company’s trademark. VIP asserts that the toy is a parody, protected under the First Amendment as free speech.

At issue is which test should govern cases of trademark infringement under the Lanham Act. JDPI argues a likelihood of confusion test should apply to commercial products. This multi-factor test considers, in part, the actual likelihood that a consumer will be confused as to the source of the product. During questioning with Justice Alito, counsel for JDPI asserted that not applying the test would overturn centuries of precedent and jeopardize “billions of dollars of brand investment.”

VIP claims a strict application of a likelihood of confusion test is not necessary. They argue that “parody, by its nature, is going to draw some humorous contrast with the original, and that contrast will serve to distinguish the two.” It is humor which differentiates a standard commercial product from an expressive, non-commercial product. VIP argues because the dog toy is obviously humorous, it should be classified as non-commercial. Therefore, they say, the case should be governed by the Rogers Test, which considers relevant artistic expression.

The district court previously found in favor of JDPI using a likelihood of confusion test. However, the Ninth Circuit reversed the lower court’s decision in VIP’s favor after applying the Rogers Test. The decision from the Supreme Court will likely come in June.