The Dog Toy That Wouldn't Die: Ninth Circuit Hands Jack Daniel's Another Courtroom Defeat in the Bad Spaniels Saga
After more than a decade of litigation that has wound through federal district courts, the Ninth Circuit, and the United States Supreme Court, a squeaky rubber dog toy shaped like a bottle of Tennessee whiskey has, once again, beaten one of the most iconic spirits brands in America. On August 4, 2026, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed the latest lower-court victory for Jack Daniel's, ruling that VIP Products' poop-joke-laden "Bad Spaniels" parody did not tarnish the famous whiskey maker's trademarks.
The Ninth Circuit issued a published ruling reversing the U.S. District Court for the District of Arizona's entry of a permanent injunction for distiller Jack Daniel's in the long-running trademark case involving VIP Products' Bad Spaniels dog toy. The decision was unanimous. This latest chapter in the decade-plus-long case remands the decision back to the district court with orders to enter judgment in favor of defendant VIP Products, after finding that Jack Daniel's did not meet its burden to show dilution by tarnishment.
For the whiskey industry, for brand lawyers, and for anyone who has ever cracked a smile at a novelty pet product, the ruling carries weight far beyond its barnyard humor. It redraws the boundaries of what it takes for a famous brand to protect itself from parody under federal trademark law — and it sends a clear message that courts will not simply assume that crude jokes harm a brand's reputation without hard evidence to back that up.
What Is Bad Spaniels, Exactly?
To understand what has been litigated for twelve years, it helps to understand the product itself. VIP Products specializes in making dog toys, including a line of "Silly Squeakers" — toys shaped and designed to look like well-known alcoholic beverages, but with dog-related puns substituted throughout the labeling. The Bad Spaniels toy is built in the unmistakable silhouette of the Jack Daniel's Old No. 7 bottle — the square-shouldered, black-labeled icon that has become shorthand for American whiskey culture worldwide.
The bottle featured a picture of a dog and was labeled "Bad Spaniels" in place of "Jack Daniel's," with taglines "Old No. 2 on your Tennessee Carpet," "43% POO BY VOL." and "100% Smelly" infused into the black label in classic Jack Daniel's fonts. It is, in the bluntest terms, a poop joke wearing the most recognizable suit in American whiskey. The toy also included a small disclaimer indicating it was not affiliated with or endorsed by Jack Daniel's — a detail that would surface in arguments about consumer confusion throughout the litigation.
Jack Daniel's, for its part, was not amused. On September 9, 2014, VIP received a demand letter from Jack Daniel's which demanded that VIP stop selling the toy. Just one week later, VIP responded by filing a lawsuit seeking a declaration that its use of the "Bad Spaniels" name and mark for its novelty dog toy did not infringe or dilute any trademark rights claimed by Jack Daniel's. What followed was one of the most procedurally tortured trademark disputes in recent American legal history.
A Timeline of Reversals: Twelve Years in Federal Court
The First Round: Arizona District Court, 2017
Following the initial 2017 bench trial, Judge McNamee of the Arizona district court awarded Jack Daniel's a permanent injunction against VIP, based on his finding that the Bad Spaniels dog toy was likely to confuse consumers as to source, constituting trademark infringement, and because the poop-themed references on the toy tarnished Jack Daniel's trademarks and trade dress. It looked, at that point, like a clean win for the Lynchburg distillery.
The First Ninth Circuit Reversal, 2020
On appeal, the Ninth Circuit reversed, holding that VIP's use of the "Bad Spaniels" mark was expressive in nature and constituted a protected First Amendment expression under Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). The Rogers test, which originates from a Second Circuit ruling involving actress Ginger Rogers and a Federico Fellini film, had been used to shield artistic and expressive works from trademark liability when the use of a mark has some artistic relevance and is not explicitly misleading. The Ninth Circuit's application of it to a dog toy — treating Bad Spaniels as an "expressive work" — was controversial from the start.
The Supreme Court Steps In, 2023
The Supreme Court granted certiorari and the case became one of the most talked-about intellectual property disputes of that term. The Supreme Court held that when an alleged infringer uses a trademark as a designation of source for the infringer's own goods, the Rogers test does not apply. In other words, because VIP was actually using the Bad Spaniels branding to identify and sell its product in commerce — not merely making an artistic commentary — it could not hide behind First Amendment protections to dodge trademark liability.
The case was unanimously decided in an opinion written by Justice Elena Kagan, who, with obvious relish for such an unusual set of facts, observed that "This case is about dog toys and whiskey, two items seldom appearing in the same sentence." The Supreme Court remanded the case back to the lower courts to conduct a proper infringement and dilution analysis without the Rogers test as a shield.
The Second District Court Ruling, January 2025
On January 21, 2025, U.S. District Judge Stephen M. McNamee ruled that, although the "Bad Spaniels" dog toy did not infringe Jack Daniel's trademark rights, it did dilute Jack Daniel's trademarks and trade dress. The district court held that, while Bad Spaniels tarnished Jack Daniel's trademarks, it did not infringe them, because Bad Spaniels was conceived and used as a "successful" parody. The court issued a permanent injunction blocking VIP from selling the toy. It was, in a sense, a split decision — the toy was too clever to confuse consumers, but too crude to escape dilution law.
The August 2026 Ruling: What the Ninth Circuit Actually Said
The U.S. Court of Appeals for the Ninth Circuit overturned the 2025 ruling that found VIP Products had diluted Jack Daniel's trademarks by associating the famous Tennessee whiskey with dog excrement. The decision removes the permanent injunction that had prevented sales of the toy.
The panel's reasoning cut through the case on two key grounds: the question of fame, and the quality of the evidence Jack Daniel's offered to prove harm.
The Fame Problem: Not Every Mark Is Created Equal
Federal dilution law under the Trademark Dilution Revision Act (TDRA) sets a high bar: a plaintiff must demonstrate that the mark being diluted is "famous" — meaning it has achieved household-name-level recognition among the general consuming public. Jack Daniel's argued that its entire brand presentation, including its trade dress, the "Old No. 7" designation, and the "Jack Daniel's" word mark, all met that standard. The Ninth Circuit disagreed — at least in part.
The Ninth Circuit noted that the district court failed to delineate between the plaintiff's trade dress and asserted trademarks "Jack Daniel's" and "Old No. 7" in finding that the asserted marks were famous. While the appellate court found that the "Jack Daniel's" mark and trade dress met the high burden of household name recognition as required to maintain dilution claims under the TDRA, it held that the record does not independently support the same level of fame for the "Old No. 7" mark.
The whiskey-maker didn't show that the specific marks mimicked to reference feces — such as turning "Old No. 7" into "Old No. 2" — were famous, the U.S. Court of Appeals for the Ninth Circuit said. This is a critical distinction. The most scatologically loaded wordplay on the toy — the "Old No. 2 on your Tennessee Carpet" joke — directly parodies the "Old No. 7" designation. If that specific mark isn't independently famous for dilution purposes, the punchline of the whole poop joke falls outside the zone of legal protection.
The Evidence Problem: Flimsy Expert Testimony
Even on the marks that did qualify as famous — the "Jack Daniel's" word mark and the registered trade dress — the court found that Brown-Forman's legal team had not adequately proven that the toy's toilet humor actually harmed the brand's reputation.
The appellate court largely ruled this way due to what it found was the district court's faulty reliance on expert witness testimony proffered by Jack Daniel's showing that the Bad Spaniels toy portrayed dog defecation in a way that would tarnish the asserted marks and trade dress.
The panel added that the lower court relied on flimsy evidence to conclude consumers would associate the famous marks with feces, as it directed the lower court to enter judgment in favor of VIP Products LLC. The expert at the center of the controversy was Dr. Itamar Simonson. Even taking together all of Bad Spaniels's lavatorial references, Dr. Simonson's testimony did not establish a harmful association between any such reference and Jack Daniel's two famous marks — "Jack Daniel's" and its registered trade dress.
The court went further, making a distinction that has immediate practical significance for future tarnishment cases. The three-judge panel concluded there was no evidence that the novelty dog toy would tarnish Jack Daniel's reputation. In its ruling, the court stated: "Bad Spaniels is a parodic dog toy not intended for human consumption." The reasoning that followed is particularly striking: the panel concluded that there was no basis in the record from which a court could reasonably infer that scatological references on a dog toy generate the same kind of disgust as the same references on a consumable product meant for humans.
According to the panel, a plaintiff seeking to prove dilution by tarnishment must show that its mark is famous, that the accused mark is sufficiently similar, and that the junior mark creates a mental association that is likely to harm the reputation of the famous mark. The court concluded that Jack Daniel's failed to satisfy that burden, and significantly rejected the argument that the Bad Spaniels toy's overall poop-themed presentation, standing alone, established tarnishment.
The Parody Factor
The court held that "failing to consider the effect of Bad Spaniels' obvious parody on the likelihood of tarnishment was a critical misstep by the district court." This is notable. The Supreme Court had ruled that parody doesn't automatically trigger free speech protections when a mark is used commercially as a source identifier. But the Ninth Circuit's August 2026 ruling makes clear that parody is still highly relevant — not as a shield against liability, but as a factor that courts must weigh seriously when evaluating whether tarnishment actually occurred.
VIP's Attorneys Celebrate; Brown-Forman Stays Quiet
The reaction from VIP Products' legal team was unrestrained. "VIP Products is delighted by the Ninth Circuit's recognition that the Bad Spaniels dog toy is a playful parody that has never posed any risk of tarnishing any of the Jack Daniel's marks," said company attorney Ben Cooper of Dickinson Wright. "We hope that, after more than a decade of litigation, today's decision will bring this dispute to an end, leaving consumers able to enjoy both whiskey and having some fun with their beloved pets," Cooper added.
Spokespeople for Jack Daniel's parent company Brown-Forman did not immediately respond to a request for comment on the decision. The silence is understandable. The company has invested enormous legal resources across twelve years of proceedings — only to end up with a worse outcome than if it had never pursued the matter in federal court at all.
What It Means for Trademark Law: The Tarnishment Bar Just Got Higher
The legal community moved quickly to analyze the implications of the ruling. The consensus: this decision raises the evidentiary standard for dilution by tarnishment claims in a significant way, and any brand considering litigation against a parody product needs to reckon with what it now requires to win.
According to Mike Hobbs, a partner at Troutman Pepper Locke's Intellectual Property Practice Group, "The Supreme Court's decision was supposed to be a win for Jack Daniel's, at least on the legal framework, but it also forced a more rigorous tarnishment analysis which the company's case hadn't been built to survive." The Ninth Circuit had to evaluate tarnishment on a clean slate, without the protective buffer of the Rogers test, and apply a stricter doctrinal standard.
That stricter standard has concrete implications. The ruling essentially requires that, for a dilution-by-tarnishment claim to prevail, a brand must prove fame mark by mark — not as a bundled package — and must produce credible evidence that consumers actually form a negative mental association between the offending product and the famous mark. A court will not presume that crude humor equals reputational harm just because the subject matter is unpleasant.
The Ninth Circuit has signaled a narrower view of tarnishment that could reshape dilution strategies across the circuit. For companies whose legal approach to brand protection has relied on the assumption that any association with bodily functions or gross-out imagery automatically constitutes tarnishment, this ruling is a wake-up call.
Some academics and attorneys have long argued that dilution by tarnishment wouldn't survive a free speech challenge. That constitutional question was never fully addressed here — VIP waived its argument that the law was facially unconstitutional at the district court and didn't press it at the Ninth Circuit — but the court's skepticism of the evidence offered to support tarnishment effectively mooted the question in this case.
What Brown-Forman Got Wrong — and What Other Brands Should Learn
Had Jack Daniel's, for example, responded with a joke on social media and moved on, the brand may have emerged in a stronger position, Hobbs suggests. It is a striking piece of hindsight analysis, but not an unreasonable one. In today's cultural landscape, a brand with Jack Daniel's level of recognition — masculine, irreverent, deeply American — might have been better served by leaning into the joke rather than litigating it. Instead, twelve years of federal court filings have produced more headlines associating the Jack Daniel's name with dog excrement than the toy ever could have generated on its own.
The lesson for brand owners is not that parody is untouchable — it clearly isn't. The Supreme Court's 2023 ruling confirmed that commercial parody can constitute trademark use subject to liability. But the path to winning a tarnishment claim is narrow and demanding. It requires mark-by-mark fame analysis, robust and targeted consumer surveys, and expert testimony that survives appellate scrutiny. A general theory that "bad associations are bad for business" will not carry the day.
The Jack Daniel's Brand: Bigger Than a Lawsuit
None of this, it should be said, meaningfully dents the commercial juggernaut that is Jack Daniel's Old No. 7 Tennessee Whiskey. Brown-Forman's flagship brand remains one of the top-selling American whiskeys in the world, its square bottle and black label among the most recognized packaging in the history of consumer goods. The Bad Spaniels toy does not compete with Jack Daniel's on any shelf that matters. No whiskey drinker has ever forgone a pour of Old No. 7 because they once saw a dog gnaw on a rubber parody of the bottle.
But the legal defeat matters for reasons that go beyond market share. Premium spirits brands invest heavily in the idea of brand equity — the intangible value carried by a name, a design, a heritage. The notion that competitors or parodists can freely trade on that equity, even for a laugh, is uncomfortable for companies that spend millions building and maintaining their image. Jack Daniel's decision to fight this case all the way to the Supreme Court and back reflected a principled — if expensive — commitment to that brand equity.
The Ninth Circuit's ruling does not say parody is always protected. It says parody, in this specific context, did not produce the kind of evidence required to prove harm. That is a distinction with real legal meaning, even if it feels, from the outside, like the dog toy won.
Where Does the Case Go From Here?
The court vacated the permanent injunction entered in Jack Daniel's favor and directed the district court to enter judgment for VIP Products on the trademark dilution claim. VIP's attorney called for the dispute to finally be put to rest after more than a decade. Whether Brown-Forman chooses to seek en banc review or pursue a second trip to the Supreme Court remains to be seen. Given the evidentiary nature of the ruling — not a sweeping legal determination, but a finding that the evidence simply wasn't there — the path to reversal at the Supreme Court level would be steep.
When Jack Daniel's asked their attorneys to send a cease and desist letter to VIP, it is doubtful they were anticipating that this letter would cause a decades-long legal battle that would be appealed twice to the Ninth Circuit Court of Appeals and once to the Supreme Court. A single cease-and-desist letter sent in the summer of 2014 set in motion one of the most-watched trademark battles of the modern era — and the answer, after all that, is that a squeaky toy shaped like a whiskey bottle and covered in bathroom humor is, in the eyes of the Ninth Circuit, no threat to the reputation of one of America's most storied spirits brands.
For the bourbon and whiskey industry, the takeaway is practical: brand protection is not automatic, no matter how famous your label. Courts demand specificity. They demand evidence. And they will not assume that a joke, however crude, diminishes what a century of craftsmanship has built.
