In the latest chapter of a long-running dispute, the US Court of Appeals for the Ninth Circuit vacated a permanent injunction against VIP Products’ “Bad Spaniels” dog toy, finding that Jack Daniel’s Properties, Inc., (JDPI) failed to establish that the parody was likely to harm the reputation of its famous marks. The Court also explained that although parody does not automatically escape dilution liability when used as a source identifier, a product’s parodic nature remains relevant to whether consumers are likely to form a damaging association with the famous mark. VIP Products LLC ⁠v. Jack Daniel’s Properties Inc., Case No. 25-2027 (9th Cir. August 4, 2026) (Berzon, Smith, Hurwitz, JJ.)

VIP Products sells a line of dog toys parodying well-known alcohol bottles. Its Bad Spaniels toy mimics the appearance of a Jack Daniel’s whiskey bottle but replaces “Jack Daniel’s” with “Bad Spaniels,” “Old No. 7” with “Old No. 2,” and “Tennessee Whiskey” with “Tennessee Carpet,” along with references to dog waste.

JDPI sued VIP for trademark infringement and dilution. The dispute ultimately reached the US Supreme Court, which in 2023 held that VIP could not invoke the Trademark Dilution Revision Act’s statutory parody exclusion because VIP used the challenged designations as source identifiers for its own goods.

On remand, the district court found no likelihood of confusion but concluded that Bad Spaniels diluted JDPI’s trademarks by tarnishment and entered a permanent injunction. VIP appealed.

The Ninth Circuit explained that a dilution-by-tarnishment claim requires the trademark owner to establish, among other things, that the asserted mark is famous and that the challenged use creates an association likely to harm the famous mark’s reputation. The Court emphasized that the analysis must be conducted on a mark-by-mark basis. Fame established for one mark cannot automatically be attributed to related marks.

Applying that framework, the Ninth Circuit found that JDPI had established fame for the Jack Daniel’s word mark and registered trade dress, but not for certain other asserted marks, including “Old No. 7.” That distinction was significant because some of Bad Spaniels’ more overt scatological references corresponded to marks that JDPI had not independently shown to be famous.

The Ninth Circuit also found JDPI’s evidence of likely reputational harm insufficient. JDPI’s expert relied on general consumer psychology research suggesting that associations between food or beverages and defecation may produce disgust, but he did not conduct a study examining consumer reactions to Bad Spaniels itself. The Court concluded that such generalized evidence did not establish that consumers would transfer negative associations from the parody dog toy to JDPI’s famous marks.

The Ninth Circuit further faulted the tarnishment analysis for failing to account for the toy’s parodic character. Although parody is not categorically exempt from dilution liability when the challenged use itself functions as a trademark, the Court explained that parody remains relevant to whether consumers are likely to make an association that harms the famous mark’s reputation. Because Bad Spaniels unmistakably mocked Jack Daniel’s, as opposed to presenting itself as Jack Daniel’s, the Court [...]

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