Bad Spaniels: what the Supreme Court actually decided about the Jack Daniel’s label

Updated September 18, 2026. We first published this the week the case was argued, and the original version got the outcome backwards. This is the corrected account.

VIP Products sells a squeaky dog toy called Bad Spaniels. It’s shaped like a Jack Daniel’s bottle, and where the real label says “Old No. 7 Tennessee Sour Mash Whiskey,” the toy says “The Old No. 2 on your Tennessee Carpet.” Jack Daniel’s asked VIP to stop selling it. VIP went to court first, asking for a ruling that the toy didn’t infringe. Jack Daniel’s counterclaimed for trademark infringement and dilution.

The trial court sided with Jack Daniel’s. The Ninth Circuit reversed. It treated the toy as an “expressive work,” which brought in the Rogers test, a rule from a 1989 case about film titles: a trademark claim against an expressive work fails unless the use has no artistic relevance or is explicitly misleading. Under that test VIP won. The Ninth Circuit also held that the parody was “noncommercial,” so it couldn’t dilute the whiskey’s mark either.

The Supreme Court agreed to hear the case in November 2022, heard argument on March 22, 2023, and decided it on June 8, 2023: Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). The decision was unanimous, and it vacated the Ninth Circuit’s ruling.

The holding, stated precisely

When the accused party uses the challenged mark as a mark, meaning as a way of identifying the source of its own goods, the Rogers test does not apply. The case goes to the ordinary likelihood-of-confusion analysis, and the parody is weighed there, as one factor, not as a threshold that ends the case before it starts. VIP had itself claimed trademark rights in the Bad Spaniels name and trade dress, which made that an easy call.

On dilution, the Court held that the Lanham Act’s “noncommercial use” exclusion does not shield a parody when the parodist is using the mark as a source identifier for its own goods. The statute already has a fair-use exclusion that covers parody, and that exclusion expressly does not reach use “as a designation of source.” Reading the noncommercial exclusion to cover the same conduct would swallow that limit.

The Court sent the case back for the Ninth Circuit to run the confusion analysis. It did not decide whether the toy infringes.

What it means for a business owner

Parody is not a free pass if you’re using someone else’s mark to brand your own product. Humor still counts, but it counts inside the confusion analysis, where the question is whether buyers are likely to think the brand owner made or approved the thing. If you’re on the other side and someone is riding your label, the decision took away the shortcut defendants had used to end these disputes early.