The Dog Toy That Beat Jack Daniel's (Again) …And What It Reveals About Trademark Law

In 2022, Jack Daniel's sued a company called VIP Products over a squeaky dog toy shaped like a whiskey bottle, labeled "Bad Spaniels," with taglines including "Old No. 2 on Your Tennessee Carpet" and "43% POO BY VOL." The case has now been to the Supreme Court and back, and on August 4, the Ninth Circuit ruled in favor of the dog toy — again.

The case is funny on its surface. The legal questions underneath it are worth paying attention to.

Trademark dilution (separate from ordinary infringement) allows famous brands to suppress expression that tarnishes their reputation through association, even when no one is confused about the product's source. The law has a parody exception, but the Supreme Court eliminated it for VIP in 2023, ruling that because the toy used Jack Daniel's marks as its own source identifier in commerce, parody couldn't shield it. The case went back down, Jack Daniel's won on tarnishment, and VIP appealed again.

The Ninth Circuit reversed on two grounds. First, Jack Daniel's expert established only a generic negative association between feces and consumable products not that the specific marks at issue, like "Old No. 7," would actually suffer reputational harm. Second, and more interestingly: even though parody doesn't trigger the statutory exception when a mark is used commercially, the court held it can still factor into whether tarnishment actually occurred. A clearly absurd parody, the court said, is less likely to cause a harmful mental association than a sincere imitation. Parody doesn't give you a legal exemption. But it can affect whether you've caused the harm you're accused of causing.

There's a question this case never answered, and probably won't anytime soon.

Some academics and attorneys have argued that dilution by tarnishment wouldn't survive a First Amendment challenge if properly tested. The argument is that allowing trademark holders to suppress expression simply because it associates their brand with something unflattering gives private companies a heckler's veto over speech — which is exactly what the First Amendment was designed to prevent. VIP waived that constitutional argument early in the litigation and never pressed it on appeal. The case could have produced a major ruling on whether tarnishment doctrine survives First Amendment scrutiny. Instead it produced a ruling about the adequacy of expert testimony. VIP won, and on grounds that will be useful in future cases — but the harder question is still waiting for the right vehicle to raise it.

The original logic of trademark was to protect consumers from confusion about who made what — a public interest rationale, not a monopoly grant for private companies. Dilution expanded that significantly. When trademark protection extends to controlling how consumers feel about a brand rather than whether they know who made a product, it starts to function less like consumer protection and more like brand reputation management at the public's expense. I wrote about this gap earlier this summer in the context of AI and creative rights, and the Bad Spaniels case is another data point in the same pattern.

The Ninth Circuit's ruling preserves space for obvious jokes, at least when the evidence of actual harm is thin. That's a reasonable outcome. But the doctrine that nearly killed the dog toy is still alive, still available to the next famous brand that decides a parody has gone too far.

Simon Tam is the founder of The Slants and the central figure in Matal v. Tam (2017), the unanimous Supreme Court decision that struck down the government's power to deny trademarks on disparagement grounds. He speaks on First Amendment issues nationally. For information on bringing him to speak, visit simontam.org/speaking.