Bad Spaniels Has the Last Bark: The Ninth Circuit Narrows the Path to Trademark Dilution Claims

By Jay Kotzker

The Takeaway

After more than a decade of litigation, four rounds of appeals, and one trip to the Supreme Court, the Ninth Circuit has closed the book on VIP Products, LLC v. Jack Daniel’s Properties, Inc. — and closed it in VIP’s favor. On August 4, 2026, a published panel opinion vacated the permanent injunction Jack Daniel’s had secured against the “Bad Spaniels” dog toy, holding that Jack Daniel’s failed to prove dilution by tarnishment under the Trademark Dilution Revision Act (TDRA). The court remanded with instructions to enter judgment for VIP.

For brand owners, the decision is a meaningful recalibration of what it actually takes to win a tarnishment claim and a reminder that fame, similarity, and reputational harm must each be proven mark-by-mark, not assumed by association.

How We Got Here

The underlying dispute is almost old enough to buy its own bottle of whiskey. VIP’s parody dog toy — styled after a Jack Daniel’s bottle but rebranded “Bad Spaniels,” with playful references to canine, um, business — first drew a cease-and-desist letter in 2014. What followed was a procedural odyssey: a 2018 bench-trial verdict for Jack Daniel’s; a 2020 Ninth Circuit reversal on First Amendment grounds; a unanimous 2023 Supreme Court decision (Jack Daniel’s Properties, Inc. v. VIP Products, LLC) rejecting the Ninth Circuit’s application of the Rogers test and holding that the TDRA’s noncommercial-use exception does not shield parody that functions as a source identifier; and a 2025 remand decision in which the district court again found for Jack Daniel’s on tarnishment and entered a new permanent injunction.

This latest opinion resolves the case the Supreme Court left open: even though VIP couldn’t rely on the TDRA’s statutory parody exemption, did Jack Daniel’s actually prove tarnishment on the merits? The Ninth Circuit’s answer is no.

Three Doctrinal Points Worth Flagging

1. Fame must be proven mark-by-mark — borrowed fame doesn’t count.The district court had lumped “Jack Daniel’s” and “Old No. 7” together, reasoning that all of VIP’s Bad Spaniels marks associated allof Jack Daniel’s marks with the joke, regardless of which specific mark was being parodied. The Ninth Circuit rejected that shortcut. Fame under the TDRA requires a mark to be a genuine “household name” recognized by the general consuming public, not merely a niche audience — and each senior mark must clear that bar independently. Because the record supported fame findings only for “Jack Daniel’s” and its registered trade dress, “Old No. 7” dropped out of the case entirely, along with any dilution theory built on “Old No. 2.”

Practical implication: Plaintiffs asserting a family of marks house brands, sub-brands, house marks paired with model or line names should build a fame record for each mark they intend to rely on. A strong reputation in the flagship mark will not automatically carry a secondary mark across the finish line.

2. Generic consumer-psychology testimony has limits.Jack Daniel’s dilution case rested heavily on expert testimony applying the decades-old Associative Network Model to conclude that pairing “food or beverage” imagery with defecation is inherently tarnishing. The problem, per the panel: the expert never studied the Bad Spaniels toy itself, and the record contained no evidence that scatological references on a dog toynot intended for human consumption carry the same tarnishing force as identical references on a consumable product. Generalized psychological principles, untethered to the accused product, were “pure conjecture” as applied here.

Practical implication: Expert dilution testimony needs to connect the dots to the specific accused mark and product context. A theory that would apply identically to any parody of any consumable brand is vulnerable on appeal, however intuitively persuasive it sounds in a courtroom.

3. A successful parody raises the plaintiff’s burden — even after Jack Daniel’s II.This is the opinion’s most notable doctrinal contribution. The Supreme Court’s 2023 decision held only that VIP could not invoke the TDRA’s statutoryparody exemption because it used the marks as source identifiers. It did not say courts must ignore parody altogether when evaluating whether tarnishment is likely. Aligning with the Second and Fourth Circuits (Hormel Foods v. Jim Henson Productions; Louis Vuitton Malletier v. Haute Diggity Dog), the Ninth Circuit held that when a parody clearly signals “this is a joke, not the real thing,” that clarity cuts against a finding that consumers will actually associate the parody with reputational harm to the original. The more obviously the accused product winks at the audience, the harder it is to prove tarnishment.

Practical implication: This is a meaningful, if narrow, lifeline for parodists and commentary-driven brands operating in the post-Jack Daniel’s II landscape. Losing the statutory exemption is not the same as losing the case parody remains relevant, just through the merits rather than a threshold defense.

What This Means Going Forward

Read together with the Supreme Court’s 2023 decision, the doctrinal map for trademark parody disputes is now clearer, if more demanding for both sides:

• For brand owners: The TDRA’s dilution-by-tarnishment claim remains viable against source-identifying parody, but it is not a rubber stamp. Plaintiffs need mark-specific fame evidence, a tarnishment theory grounded in the actual accused product (not generic psychology), and a strategy for addressing parody’s dampening effect on consumer confusion about reputational harm.
• For challengers and parody-driven brands: The path forward runs through the merits, not the statutory exemptions. A well-executed, unmistakable parody one where “the differences in source are not particularly subtle,” as the court put it is a real asset in defending against tarnishment claims, even without the benefit of the noncommercial-use exception.
• For litigators generally: Expect renewed attention to expert methodology in dilution cases. Courts are signaling that off-the-shelf consumer-psychology models, disconnected from the specific marks and products at issue, will draw closer scrutiny on appeal.

Holon’s View

This decision is a useful corrective in an area of trademark law that can otherwise feel results-driven. Dilution protection exists for a genuinely select class of marks and is meant to operate independent of confusion or competition precisely because it is so powerful, courts are right to hold plaintiffs to precise, evidence-based proof rather than broad brand-equity intuitions. Brand owners should treat this opinion as a blueprint for how not to build a dilution record, and parody-adjacent businesses should treat it as confirmation that clever, clearly signaled satire still has real breathing room under the Lanham Act even after a decade of litigation said otherwise.

This article is provided for general informational purposes only and reflects Holon Law Partners’ analysis of a recent published appellate decision. It does not constitute legal advice and does not create an attorney-client relationship. Readers with specific questions about trademark dilution, parody use, or brand protection strategy should consult directly with counsel.