On August 4, 2026, in VIP Products, LLC v. Jack Daniel’s Properties, Inc., the Ninth Circuit vacated a permanent injunction barring VIP Products from selling its “Bad Spaniels” squeaky dog toy, a parody of the Jack Daniel’s whiskey bottle. In doing so, the Court held that Jack Daniel’s Properties, Inc. (“JDPI”) failed to prove trademark dilution by tarnishment under the Federal Trademark Dilution Act and remanded with instructions to enter judgment for VIP. The decision offers important lessons for brand owners and parodists alike.
VIP Products designs and sells novelty dog toys, including a “parody line” shaped like well-known beverage bottles. Its “Bad Spaniels” toy mimics the look of a Jack Daniel’s Old No. 7 Tennessee Whiskey bottle but replaces brand elements with humorous, scatological references: “Old No. 2 On Your Tennessee Carpet,” “43% POO BY VOL.,” and “100% SMELLY.” The toy also bears a disclaimer stating it “is not affiliated with Jack Daniel Distillery.”
After JDPI demanded that VIP stop selling the toy, VIP filed suit in the District of Arizona seeking a declaratory judgment of non-infringement and non-dilution; JDPI counterclaimed for trademark infringement and dilution under the Lanham Act. Following a 2017 bench trial, the district court found tarnishment and infringement and entered a permanent injunction for JDPI.
The Ninth Circuit reversed on dilution and vacated on infringement. The U.S. Supreme Court then granted certiorari. In Jack Daniel’s Properties, Inc. v. VIP Products, LLC, 599 U.S. 140 (2023), the Supreme Court held that the Trademark Dilution Revision Act’s (“TDRA”) noncommercial-use exception does not shield parodic uses that function as source identifiers, meaning VIP could not escape JDPI’s tarnishment claim through that statutory safe harbor.
On remand, the district court again found VIP liable for dilution by tarnishment and entered a permanent injunction but ruled in favor of VIP on infringement after finding no likelihood of confusion. VIP appealed the tarnishment finding, leading to this August 4, 2026 opinion.
Link to The Tarnishment Standard The Tarnishment Standard
The Ninth Circuit framed dilution by tarnishment as requiring proof that (1) the plaintiff’s mark is famous, (2) the defendant’s mark is similar to it, and (3) the defendant’s mark creates a mental association with the famous mark likely to damage its reputation. It further recognized that dilution protects against uses that “blur the distinctiveness of the mark or tarnish or disparage it, even in the absence of a likelihood of confusion.”
Link to Fame Must be Established Mark-by-Mark Fame Must be Established Mark-by-Mark
However, the Court clarified that fame must be analyzed on a mark-by-mark basis, rejecting the district court’s approach of grouping JDPI’s marks together and finding that “Jack Daniel’s trademarks and trade dress are famous,” without distinguishing among them. The Ninth Circuit held this approach to be clear error because the TDRA “does not permit borrowing fame from one senior mark to establish the fame of another.”
The Court found that JDPI proved the “Jack Daniel’s” word mark and the bottle’s registered trade dress were famous but failed to establish fame for “Old No. 7” and the “40% ALC. BY VOL. (80 PROOF)” phrase (a non-mark element), which were therefore dropped out of the analysis.
Link to Generic Expert Testimony is Insufficient to Prove Likely Reputational Harm Generic Expert Testimony is Insufficient to Prove Likely Reputational Harm
To prove the element of likely reputational harm, JDPI relied heavily on expert testimony from Dr. Itamar Simonson, who applied the Associative Network Model (“ANM”)—a consumer-psychology framework mapping brand associations in memory—to argue that the Bad Spaniels toy created a harmful mental link between Jack Daniel’s whiskey and dog excrement.
The Ninth Circuit found Simonson’s testimony insufficient for several reasons:
- No Product-Specific Study. Simonson conducted no study on whether the Bad Spaniels toy itself creates harmful associations with JDPI’s famous marks, relying instead on “generic consumer psychology research” about disgust associated with defecation and consumable products.
- Wrong Product Context. Bad Spaniels is a dog toy, not a product for human consumption, and the Court found “no evidence in the record from which a court could reasonably infer that scatological references made on a dog toy have the same likelihood of generating disgust as identical references on a consumable product meant for humans might.”
- Projecting an Image at Odds with a Brand is Not Enough. The Court cited Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410 (S.D.N.Y. 2002), for the principle that merely projecting “an image at odds with [the plaintiff’s] reputation for high-quality products” does not, standing alone, prove a likelihood of reputational harm.
Link to Parody is a Relevant Factor in the Tarnishment Analysis Parody is a Relevant Factor in the Tarnishment Analysis
The opinion’s most consequential aspect is its treatment of parody. Although the Supreme Court had held that VIP could not invoke the TDRA’s statutory “fair use” exclusion because it used the marks as source identifiers, the Ninth Circuit clarified that this holding addressed only the statutory exception and “did not concern whether parody can factor into a tarnishment analysis.”
Aligning with the Fourth and Second Circuits, the Court held that parody remains relevant to the tarnishment analysis even though it cannot serve as a complete statutory defense. A successful parody “convey[s] two simultaneous—and contradictory—messages: that it is the original, but also that it is not the original and is instead a parody,” and consumers who perceive that dual message are more “likely to see [it] as the joke it was intended to be,” making actual reputational harm less probable.
The Court found that Simonson’s analysis “ignored the effect of a ‘humorous difference’ on whether Bad Spaniels harms the reputation of JDPI’s famous marks”—“a critical misstep” that led the district court to erroneously adopt conclusions discounting the parodic nature of VIP’s product.
Link to Implications Implications
This decision fills an important gap left by the Supreme Court’s 2023 ruling. After the Supreme Court’s ruling removed the statutory “safe harbor” for source-identifying parodies, commentators and practitioners worried that parody-based products would face near-automatic tarnishment liability. The Ninth Circuit’s opinion makes clear that is not the case.
While parodists may no longer escape liability at the threshold through a statutory exclusion, the inherently humorous nature of their products can still defeat a dilution claim on the merits. This is likely to embolden makers of novelty and parody products, while signaling to brand owners that tarnishment claims against clear parodies will require rigorous, product-specific evidence of likely reputational harm.
Link to For Brand Owners Pursuing Dilution Claims For Brand Owners Pursuing Dilution Claims
Dilution by tarnishment under the TDRA imposes a demanding evidentiary burden, particularly when the allegedly diluting product is parodic:
- Fame Must Be Proven for Each Asserted Mark. Brand owners cannot lump marks together and rely on their portfolio’s overall reputation; subordinate marks (like “Old No. 7”) may not independently clear the high “household name” threshold for fame.
- Generic Expert Testimony Will Not Suffice. Courts expect evidence tied to the specific junior mark at issue, not abstract consumer psychology theories. Brand owners should use consumer surveys or studies testing whether the accused product, in its actual marketplace context, is likely to harm the reputation of the specific famous marks asserted.
- Context Matters. A junior mark on a non-competing, non-consumable product (here, a dog toy) faces greater skepticism that it generates the same harmful associations as an identical reference on a directly competing product.
- Parody Raises the Evidentiary Bar. Although parody is no longer a complete statutory defense, it remains a relevant factor in the tarnishment analysis. Where a parody is “successful” and “not particularly subtle,” plaintiffs face an increased burden to show reputational harm is nonetheless likely.
Link to For Asserting Parodic or Expressive Use Defenses For Asserting Parodic or Expressive Use Defenses
Parodic products can, in certain circumstances, still defeat a dilution claim on the merits:
- Parody Survives as a Factual Consideration. Although the Supreme Court foreclosed the TDRA’s statutory exclusion for source-identifying parodies, parodists can still argue (and courts must still consider) that a product’s humorous, dual-message nature makes reputational harm less likely.
- Clarity of Parody Matters. The more obvious and successful the parody, the harder it is for a plaintiff to prove likely tarnishment; VIP’s transparent humor—the “Bad Spaniels” name, “Old No. 2” substitution, and disclaimer—worked in its favor.
- The Burden Stays on the Plaintiff. The Court reaffirmed that “the burden of proving a likelihood of dilution ‘always remains with the plaintiff.’” Defendants need not prove the absence of tarnishment.
The decision is VIP Products, LLC v. Jack Daniel’s Properties, Inc., Case No. 25-2027 (9th Cir. Aug. 4, 2026).