On August 4, 2026, the Ninth Circuit vacated the district court’s permanent injunction barring VIP Products from selling its “Bad Spaniels” dog toy and directed entry of judgment for VIP on Jack Daniel’s claim for dilution by tarnishment. VIP Prods., LLC v. United States, No. 25-2027, 2026 WL 2237625, at *2 (9th Cir. Aug. 4, 2026). The precedential decision clarifies the role of parody after the Supreme Court’s 2023 ruling. A parody used as a trademark remains subject to ordinary Lanham Act scrutiny, but its expressive character may still affect whether confusion or reputational harm is likely. See id. at *9-10 & n.6.
The Bad Spaniels toy mimics the shape and label of a Jack Daniel’s whiskey bottle, replacing “Jack Daniel’s” with “Bad Spaniels,” “Old No. 7” with “Old No. 2,” and “Tennessee whiskey” with “Tennessee carpet,” while adding “43% POO BY VOL.” After a 2017 bench trial, the district court found VIP liable for trademark infringement and dilution by tarnishment, and in 2018 it entered a permanent injunction. Id. at *3.
VIP appealed, and in 2020 the Ninth Circuit reversed the dilution judgment and vacated the infringement judgment. It held that Bad Spaniels was an expressive work subject to the Rogers test, under which a Lanham Act claim may proceed only if the challenged use has no artistic relevance to the underlying work or explicitly misleads consumers as to the source or content of the work. The court also held that VIP was entitled to judgment on the dilution claim because Bad Spaniels used Jack Daniel’s trade dress to convey a humorous message. VIP Prods., LLC v. Jack Daniel’s Props., Inc. (Jack Daniel’s I), 953 F.3d 1170, 1174-76 (9th Cir. 2020) (citing Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989)). On remand, the district court granted summary judgment to VIP on both claims, and the Ninth Circuit summarily affirmed. VIP Prods. LLC v. Jack Daniel’s Props., Inc., No. 21-16969, 2022 WL 1654040 (9th Cir. Mar. 18, 2022).
In 2023, the Supreme Court vacated and remanded. It held that because VIP used the challenged marks to identify the source of its own product, the Rogers test did not apply to the infringement claim and the dilution statute’s exclusion for noncommercial use did not shield the challenged use. The Court left the merits of both claims for the lower courts. Jack Daniel’s Props., Inc. v. VIP Prods. LLC, 599 U.S. 140, 153, 161-63 (2023). After the case returned to the district court, the court found for VIP on infringement because Jack Daniel’s had not shown a likelihood of confusion, but again found dilution by tarnishment and entered a permanent injunction. VIP appealed. VIP Prods., LLC, 2026 WL 2237625, at *4.
