Last week, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in VIP Products, LLC v. Jack Daniel’s Properties, Inc., No. 25-2027 (Aug. 4, 2026), vacating the district court’s permanent injunction in favor of Jack Daniel’s Properties, Inc. (“JDPI”), and remanding for entry of judgment in favor of VIP Products, LLC (“VIP”) on JDPI’s claim for trademark dilution by tarnishment under the Trademark Dilution Revision Act (“TDRA”).
VIP manufactures a novelty squeaky dog toy called “Bad Spaniels” that parodies JDPI’s “Old No. 7” Tennessee Whiskey bottle—for example, by including the statement, “Old No. 2 On Your Tennessee Carpet.” JDPI sued for trademark infringement and dilution under the Lanham Act. In a long-running dispute, the district court held a bench trial, found dilution by tarnishment, and entered a permanent injunction. After VIP appealed, the Ninth Circuit reversed on dilution, but the Supreme Court then vacated and remanded, holding that the TDRA’s noncommercial-use exception does not shield source-identifying parodies. On remand, the district court again found VIP liable for dilution by tarnishment and entered a permanent injunction, and VIP again appealed.
The Ninth Circuit reversed. The Court first determined that JDPI proved fame as to the “Jack Daniel’s” mark and its registered trade dress but not as to the “Old No. 7” mark, which thus could not support a tarnishment claim. This was because the TDRA requires individualized proof of fame for each mark and prevents borrowing fame from one mark to establish fame for another.
The Court next determined that JDPI failed to prove the Bad Spaniels toy would likely cause reputational harm to its famous marks. The Court noted that in attempting to prove tarnishment, JDPI submitted expert testimony that relied on generic consumer psychology research and did not analyze the toy itself. The Court concluded that while this testimony could support a negative association between food or beverage and defecation, it did not show that scatological references on a parodic toy would generate that same association. The Court further concluded that JDPI’s expert testimony failed to consider the Bad Spaniels toy’s parodic nature, which was relevant to assessing likelihood of dilution. Finally, the Court reiterated that plaintiffs always bear the burden of proving likelihood of dilution and confirmed that JDPI’s speculative evidence failed to carry that burden.
