A Squeaky Dog Toy Took Jack Daniel's to the Supreme Court

Twelve years, three trips through the Ninth Circuit, one unanimous Supreme Court opinion — and in the end, the dog toy is still on the shelf.

A rubber chew toy shaped like a whiskey bottle sounds like a joke, and that was the point. VIP Products sells a line of squeaky toys called Silly Squeakers, each one a parody of a famous drink bottle. In 2014 it added Bad Spaniels. "Jack Daniel's" became "Bad Spaniels." "Old No. 7 Brand Tennessee Sour Mash Whiskey" became "The Old No. 2 On Your Tennessee Carpet." Where the real label gives the alcohol content, the toy says "43% poo by vol." and "100% smelly." The hangtag carries a disclaimer: "This product is not affiliated with Jack Daniel Distillery."

Jack Daniel's was not amused. What followed is worth studying not because of who won, but because the answer kept changing: Jack Daniel's in 2018, VIP in 2020, Jack Daniel's on the law in 2023, a split decision in 2025, and VIP again in 2026.

The Record Behind the Bottle

Before the lawsuit makes sense, it helps to see what Jack Daniel's actually owns. These are the registrations the courts relied on, as they appear in the USPTO's records:

All four are in Class 33, alcoholic beverages. By the end of September 2026, the USPTO records listed Jack Daniel's Properties, Inc. as the current owner of 255 live registrations. That's the asset VIP's toy borrowed from: not one logo, but a whole label and a bottle shape the company has been registering for more than a century.

What the Supreme Court Actually Decided

The Supreme Court's opinion is often summarised as "Jack Daniel's won." It did — on a narrow point, and the Court said so itself: "Today's opinion is narrow."

The Rogers test, borrowed from a 1989 Second Circuit case about a film title, lets an artistic work use someone else's mark unless the use has no artistic relevance or is explicitly misleading. The Ninth Circuit had applied it to the dog toy. The Supreme Court held that Rogers "does not apply when the challenged use of a mark is as a mark" — and VIP was using Bad Spaniels as its own brand. VIP had even said in its complaint that it owned and used the "Bad Spaniels" trademark and trade dress. Once a parody is your product's name, you are back under the ordinary question every trademark case asks: are buyers likely to be confused about who made this?

The same logic closed the dilution escape hatch. The noncommercial-use exception, the Court held, "does not shield parody or other commentary when its use of a mark is similarly source-identifying."

Then came the sentence that decided everything after it: "a trademark's expressive message—particularly a parodic one, as VIP asserts—may properly figure in assessing the likelihood of confusion." A parody that works, the Court added, "is not often likely to create confusion."

Two concurrences are worth knowing. Justice Sotomayor, joined by Justice Alito, warned courts to treat consumer surveys "with particular caution" in parody cases — pointed, since the 2018 confusion finding rested largely on a survey. Justice Gorsuch, joined by Justices Thomas and Barrett, told lower courts to handle Rogers "with care," signalling doubts about the test itself.

Back in Arizona: Confused? No. Tarnished? Yes.

On remand the district court did what the Supreme Court described: it ran the usual likelihood-of-confusion factors while taking the joke into account. The result flipped. Starting "with the premise that a successful parody is unlikely to be confusing," the court found Jack Daniel's had not shown likely confusion. Accounting for parody "neutralizes or flips" three important factors — how similar the marks are, VIP's intent, and the strength of the Jack Daniel's mark. The one factor still on Jack Daniel's side was purchaser care: people buying "a $15 dog chew toy" don't study the label.

But the court found for Jack Daniel's on tarnishment, and explained the paradox by quoting the leading treatise, McCarthy on Trademarks (§ 31:153): "the more distasteful and crude the parody, the less likely it is that the public will mistakenly think that the trademark owner has sponsored or approved it." The crude joke that kept buyers from being confused was the same thing that, in the court's view, damaged the whiskey's reputation. It ordered an injunction.

The Ninth Circuit, 2026: The Burden Stays With the Brand

The final appeal — argued May 20, 2026 in Phoenix before Judges Berzon, M. Smith and Hurwitz, opinion by Judge M. Smith — turned on proof. To win on tarnishment, the court held, a brand owner must show its mark is famous, the other mark is similar, and the association is likely to damage the famous mark's reputation.

Jack Daniel's fell short on the last step. The only marks it had proven famous were the name "Jack Daniel's" and its registered trade dress. It conceded the toy's name and trade dress were not tarnishing on their face, and the court found neither was "portrayed in an unwholesome or unsavory context" likely to hurt the brand. Jack Daniel's had rested this part of its case on its expert, Dr. Simonson, and the panel held the district court was wrong to treat that testimony as enough to prove a likelihood of dilution "beyond speculation." The injunction was vacated.

The United States had intervened to defend the dilution statute against VIP's claim that the tarnishment provision is unconstitutional. The Ninth Circuit didn't reach that question: having ruled for VIP on the evidence, it declined to address VIP's other arguments, "including its constitutional challenge to the tarnishment provision."

As of mid-October 2026 we found no report of a petition for rehearing or for certiorari. Check the Ninth Circuit docket (No. 25-2027) before treating the case as closed.

If You're the One Making the Parody

• The name on your product is the problem, not the joke. After 2023, a parody you use as your own brand gets no First Amendment shortcut. It has to survive the ordinary confusion test — and the Arizona ruling shows an obvious parody can.
• The benefit only exists if the parody reads as a parody. The court started from the premise that "a successful parody is unlikely to be confusing," and that premise is what moved similarity, intent and strength to VIP's side.
• The disclaimer wasn't part of the reasoning. The hangtag's "not affiliated" line is in the record, but the 2025 confusion analysis doesn't rely on it.
• Dilution is a separate fight. A non-confusing parody can still be attacked as tarnishment. VIP won that in 2026 because Jack Daniel's couldn't prove reputational harm — not because parody is automatically protected. Expect it to start with a cease and desist letter, as this one did.

If You Own the Famous Brand

• A Supreme Court win on the rule isn't a win on the facts. Jack Daniel's got the standard it asked for and still lost both claims under it.
• Expect your survey to be questioned. Two Justices urged "particular caution" with surveys in parody cases. That's a concurrence, not the holding — but the 2018 confusion win rested largely on a survey, and it didn't survive.
• Tarnishment needs proof, not just a distasteful joke. Jack Daniel's conceded the toy wasn't tarnishing on its face and leaned on expert testimony; the Ninth Circuit found that testimony didn't get past speculation.
• Your registrations are your evidence. Fame was proven for the name and the registered trade dress — not for every element of the label.

The same question — when does a joke or an artwork become a brand of its own? — ran through the MetaBirkins NFT case, decided by a jury the same year as the Supreme Court ruling.

FAQ

Who won Jack Daniel's v. VIP Products?

Both, at different stages. Jack Daniel's won 9–0 at the Supreme Court in June 2023 on the legal rule: the Rogers test doesn't apply when a parody is used as the parodist's own brand. On remand the district court found no likely confusion but ruled for Jack Daniel's on tarnishment (January 2025). In August 2026 the Ninth Circuit reversed the tarnishment ruling and ordered judgment for VIP.

Is brand parody still legal after Bad Spaniels?

Commentary and art about brands remain protected. What changed is the treatment of a parody used as the branding of a product you sell: it now goes through the ordinary likelihood-of-confusion analysis, with the parody weighed in that analysis — and the Bad Spaniels toy passed it on remand.

What was the Rogers test?

A doctrine from Rogers v. Grimaldi (2d Cir. 1989) that shields marks used in expressive works, like film titles, unless the use has no artistic relevance or explicitly misleads. After 2023 it doesn't apply when the mark is used as the defendant's own source identifier.