Whiskey Business: Parsing the 9th Circ. Jack Daniel’s IP Toss
Law360 Expert Analysis Column
“The court’s rejection of Jack Daniel’s evidence shows that there may exist no categories of per se tarnishing content — placing great power in the hands of the fact-finder to decide what tarnishes and what does not.” – Sara Gold
Published in August 2026 in Law360, this article discusses dilution by tarnishment, a trademark law that prohibits parodies of famous marks if the parody is shown to cause reputational harm to the trademark owner.
Enter VIP Products, a toy company whose Bad Spaniels dog toy purposefully mimics a bottle of Jack Daniel’s whiskey. VIP argued that the toy was a lawful parody, complete with humorous references to dog poo. Jack Daniel’s apparently did not give a “crap”…leading to the 12 years of litigation that have ensued since 2014.
Over the past 12 years, the case volleyed between the lower courts, was heard by the U.S. Supreme Court in 2024, and was sent back to the trial court for further proceedings. The trial court decided in 2025 that the Bad Spaniels toy committed dilution by tarnishment and could not legally be sold. VIP appealed, and the Ninth Circuit revoked the sales ban on the basis that the toy was not tarnishing.
Read my Law360 column to learn why the Ninth Circuit poo-pooed the trial court’s decision—and what this all means for artistic creators and trademark owners going forward.
Citation: Sara Gold, Whiskey Business: Parsing the 9th Circ. Jack Daniel’s IP Toss, Law360 (Aug. 17, 2026, 2:22 PM), available at https://www.law360.com/articles/2512395.