After more than a decade of litigation, the showdown between Jack Daniel’s whiskey and Bad Spaniels dog toys has come to an end, most likely.
The Claims
I’ve written about this case before. (See, e.g., Balancing the First Amendment on Whiskey and Dog Toys, 5/4/2023).
Basically, Jack Daniel’s Products claimed trademark rights, including trade dress, in its Old No. 7 Tennessee whiskey, including the distinctive shape and label of its whiskey product. VIP Products made a dog toy called “Bad Spaniels,” shaped like a bottle of Jack Daniel’s whiskey with a label that looks like the famous whiskey label. Instead of “Jack Daniel’s,” the dog toy is called “Bad Spaniels.” Instead of “Old No. 7 Brand Tennessee sour mash whiskey,” the dog toy label reads, “Old No. 2 on your Tennessee carpet.”
Jack Daniel’s sued VIP, claiming trademark infringement and dilution.
The district court ruled in favor of Jack Daniel’s. The court ruled that the “Bad Spaniels” dog toy was likely to confuse consumers about the source of the product and to tarnish the Jack Daniel’s brand.
The Ninth Circuit Court of Appeals reversed. The dog toys, the Court ruled, are parody goods protected as expression by the First Amendment.
The U.S. Supreme Court granted certiorari to review the decision. (See Court Agrees to Hear Parody Goods Case, 11/27/2022).
The Supreme Court Decision
The United States Supreme Court reversed the Ninth Circuit Court of Appeals. The Court held that although using a trademark for an expressive purpose might qualify for First Amendment protection, that protection does not insulate the user from trademark infringement or dilution liability if it is also used as a source-identifier for a product. Parodic uses of other people’s trademarks may result in trademark liability if they are used not only for expressive purposes but also to identify the source of a product or service. (See Can We Talk Here? Trademark Speech Rights, 6/14/2024.)
The First Amendment does not shield parody goods from trademark infringement and dilution claims when the alleged diluter uses a mark (or something confusingly similar to it) as a designation of source for its own products or services. (See Enduring (Non-AI) Legal Issues, 5/16/2026).
The Ninth Circuit Remand
The case returned to the Ninth Circuit Court of Appeals with the infringement question having been decided in VIP’s favor on the facts. The Court addressed only the tarnishment claim.
The Court ruled in favor of VIP Products:
“Neither Bad Spaniels nor the toy’s trade dress facially tarnished Jack Daniel’s corresponding famous marks, and neither was portrayed in an unwholesome or unsavory context that was likely to tarnish the reputation of the famous marks”
VIP Products v. Jack Daniel’s Properties (August 4, 2026).
Jack Daniel’s proved its word mark (“Jack Daniel’s) and trade dress (the whiskey bottle shape) are sufficiently famous to be protected against dilution. It did not, however, prove that “Old No. 7” is famous.
More significantly, the Court ruled that the evidence did not support a finding of likely reputational harm. An expert had testified that consumers generally are disgusted by an association between a consumable product and feces. The Court, however, ruled that this is not enough. Evidence of likely harm from the specific product and marks involved in the case is necessary. When it is obvious to consumers that a product is a parody, consumer disgust cannot be assumed.
What this means is that although parody is not a complete defense to a claim of trademark dilution by tarnishment, winning a claim that parody goods tarnish a trademark’s reputation might not be easy. Parody is not absolutely protected, but it raises a trademark claimant’s burden to demonstrate actual likelihood of reputational harm. If it is an effective parody, consumers are likely to recognize it as a joke rather than a serious claim about the nature or quality of the trademarked product.
Anti-Nudification
This is clearly a radical non sequitur, but if you have a prurient or other interest in developments in AI law, check out my analysis of the constitutionality of Minnesota’s new anti-nudification law in Why Minnesota’s Anti-Nudification Statute Is Probably Unconstitutional.
