Parody Products Get a Big Win in Court. Will They Proliferate? Can You Stop Them?

A recent court decision made parody products less legally risky. Will they proliferate? When can you stop others from parodying your business’s products?

VIP Products, the maker of the “BAD SPANIELS” rubber dog toy, recently defeated the intellectual property claims made against it by the maker of Jack Daniel’s whisky. The dog toy is shaped like the Jack Daniel’s bottle.

In addition to the BAD SPANIELS marquee name, the toy replaced the Jack Daniel’s subtitle “Old No. 7 Brand Tennessee Sour Mash Whisky” with “Old No. 2, on Your Tennessee Carpet.” It replaced Jack Daniel’s “40% ALC. BY VOL” with “43% POO BY VOL” and added “100% SMELLY.”

This case illustrates how hard it is for the maker of a famous product to stop a parody product even if the parody associates the famous mark with something disgusting.

Jack Daniel’s Properties, the whisky maker, and VIP Products have been battling in court since 2014 over the toy.

After years of litigation and appeals, the trial court held that there was no trademark infringement because consumers were not likely to be confused into believing that the maker of the famous whiskey was associated with the dog toy. But the court held that the dog toy constituted dilution by tarnishment – that it damaged the famous JACK DANIEL’S trademark by associating it with dog excrement.

What is tarnishment? Owners of famous trademarks can sometimes stop others from using similar names, even on dissimilar products. This is called dilution.

Tarnishment is a kind of dilution. Tarnishment occurs when use of a similar mark creates an association likely to harm the reputation of the famous mark – for example, by linking it to something shoddy, degrading, pornographic, or illegal.

The case then went back to the Ninth Circuit, which, in early August, threw out Jack Daniel’s Properties’ win on the tarnishment theory.

Jack Daniel’s Properties had presented expert testimony that people don’t like having their food or drink associated with feces. But that expert didn’t conduct a consumer survey to prove that any such association in the minds of consumers caused by the dog toy harmed sales of the whiskey or was likely to do so. The court held that the lack of such proof sank the tarnishment claim.

While the Ninth Circuit held that parody is not always a complete defense to a dilution claim, the court effectively made it one.

The court noted that a successful parody must accomplish two things: call the famous trademark to mind but make fun of it in such a way that the public will understand that it’s not associated with that trademark owner. If the maker of the parody product accomplishes both things, then, practically speaking, the owner of the famous mark can win only if it shows that the parody lowered its sales or was likely to do so.

What are the implications of this case?

For makers of parody products, the parody must be successful. Consumers of your product must get the joke so that they understand that your product isn’t associated with the famous brand. If you fail at that, you could be liable for trademark infringement and dilution.

Also, litigating such a case can be ruinously expensive. The amount each side spent on legal fees isn’t public. I asked several AIs to estimate the amounts. The average AI estimate was $6 million for Jack Daniel’s Properties and $4 million for VIP Products. That seems about right.

I don’t know how VIP Products afforded legal fees of that magnitude. Anyone contemplating a parody product should ask whether it is so outrageous that it might spur the trademark owner to take legal action. If the answer is “yes,” think twice.

As for trademark owners concerned about parody products, the most important things are to federally register your marks for every good and service you sell or provide and to monitor for and defend against others registering parody marks.

If you catch a potential parody product before the maker has made a big investment, that maker will be more likely to back down when confronted. But if the parody maker has launched the product and rejects your cease-and-desist letter, before filing suit, carefully judge your prospects for victory compared to litigation costs.

In the end, unlike Jack Daniel’s whiskey, trademark owners may find putting up with parody products hard to swallow. Still, the prospect of spending big bucks on legal fees attacking them with little likelihood of success will give them something to chew on.

Written on August 19, 2026

by John B. Farmer

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