Few squeaky toys have generated as much noise as Bad Spaniels. VIP Products LLC (VIP) v. Jack Daniel’s Properties, Inc. (JDPI) began as a dispute over a dog-poop themed parody of a Jack Daniel’s Tennessee Whiskey bottle. More than a decade of litigation followed.

On August 4, 2026, the Ninth Circuit vacated the permanent injunction against VIP Products and directed the district court to enter judgment in VIP’s favor on JDPI’s dilution by tarnishment claim. VIP Prods., LLC v. Jack Daniel’s Props., Inc., No. 25-2027 (9th Cir. Aug. 4, 2026). The court did not reach VIP’s constitutional challenge. Instead, it held that JDPI had not carried its burden to prove dilution by tarnishment under the Trademark Dilution Revision Act (TDRA).

The TDRA framework

The TDRA allows the owner of a famous and distinctive mark to enjoin a commercial use likely to cause dilution by tarnishment, even without confusion, competition or actual economic injury. 15 U.S.C. § 1125(c)(1). Tarnishment is defined under the statute as “an association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark.” Id. § 1125(c)(2)(C).

On appeal, JDPI argued that tarnishment turns on how the defendant uses its mark in the real world, and that VIP’s poop-themed toy tarnished its marks as a group regardless of which junior mark carried the joke. The Ninth Circuit required a closer fit, holding that courts may weigh only the dilutive effect of a junior mark similar to a corresponding famous mark. This meant that JDPI had to match each allegedly tarnishing element to a famous mark of its own.

Fame must be proved mark by mark

JDPI asserted several features of its bottle: the words “Jack Daniel’s,” the phrase “Old No. 7,” the registered trade dress and the alcohol-by-volume statement. The district court found the collection famous and did not examine whether each separate element was famous on its own.

The Ninth Circuit held that JDPI proved fame only for the “Jack Daniel’s” word mark and its registered trade dress. The district court had not separately analyzed whether “Old No. 7” was widely recognized by the general consuming public, and the record did not establish the mark’s fame. The fame of a flagship mark, the Ninth Circuit reasoned, does not extend to every phrase or design element appearing with it.

The primary offending language on VIP’s toy was the wording “Old No. 2 On Your Tennessee Carpet,” which corresponded to JDPI’s “Old No. 7” mark. But with “Old No. 7” out of the case, “Old No. 2” left with it. VIP’s “43 percent POO BY VOL.” language was also excluded because the corresponding alcohol-by-volume statement was not a trademark.

Context still matters

What remained was a narrow comparison: “Bad Spaniels” against “Jack Daniel’s,” and VIP’s trade dress against JDPI’s registered trade dress. VIP did not contest similarity, and JDPI acknowledged that “Bad Spaniels” says nothing about defecation. Neither surviving mark was tarnishing on its face.

The court did not hold that corresponding marks must always be examined in isolation. Context may matter when a junior mark appears on a poor-quality, illegal or otherwise unsavory product. But context alone is not enough. The plaintiff must establish the harmful association between its famous mark and the defendant’s similar junior mark. Here, JDPI failed to do so.

Generic evidence is not enough

The district court relied on testimony from JDPI’s expert, Dr. Itamar Simonson. Drawing on consumer-psychology research linking food, feces and consumer disgust, Simonson concluded that VIP’s toy had added a negative association to JDPI’s whiskey.

The Ninth Circuit found that testimony lacking. Simonson had studied neither the toy nor the consumers who encountered it and had tested no association between Bad Spaniels and either mark still in the case. His analysis focused on consumable products, but the court pointed out that the Bad Spaniels toy is not a product intended for human consumption. Whether crude humor on a dog toy produces the reaction it produces on a consumable was a question the record left unanswered, and the court called Simonson’s inference on the point “pure conjecture.”

Parody remains relevant

The Supreme Court had already held that VIP could not rely on the TDRA’s statutory parody exclusion because VIP used the challenged marks as source identifiers. Even so, the Ninth Circuit held that parody remains relevant to whether dilution is likely.

The court, drawing on the Second Circuit’s decision in Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 503 (2d Cir. 1996), explained that a parody conveys two messages at once: that it is the original, but also that it is not the original and is instead a parody. The second message may prevent consumers from carrying the joke’s crudeness or negative association back to the famous mark it borrows. Simonson agreed that the toy was designed to call Jack Daniel’s to mind, but his model did not account for the fact that it did so through parody. Thus, the Ninth Circuit found that the district court had erred by relying on conclusions that ignored how the toy’s parodic nature might shape consumer perception. While parody is not a complete defense, it must be considered when assessing likely tarnishment.

The constitutional question remains open

VIP also argued that the tarnishment provision is unconstitutional because it permits flattering uses while prohibiting those that harm a mark’s reputation. The Ninth Circuit did not address that issue. Having resolved the case on statutory grounds, it set the question aside in a footnote.

The practical takeaway is clearer than the constitutional one. Plaintiffs must prove fame separately for each asserted mark, tie the junior mark to a corresponding famous mark and present evidence of likely reputational harm grounded in the actual product and context. Defendants should test each link in that chain and preserve constitutional objections.

Whether this dispute is over remains to be seen. What is certain is that the constitutionality of the tarnishment provision will be tested again. While the Ninth Circuit could sidestep the issue here, Tam and Brunetti have made the question unavoidable.