Jack Daniel’s Loss in Long-Running ‘Bad Spaniels’ Case Significantly Raises Bar for Tarnishment Claims, Experts Say

Michael D. Hobbs, a partner in Troutman Pepper Locke’s Intellectual Property Practice Group, was quoted in the August 7, 2026, World Trademark Review article, “Jack Daniel’s Loss in Long-Running ‘Bad Spaniels’ Case Significantly Raises Bar for Tarnishment Claims, Experts Say.”

• The Supreme Court’s decision was supposed to be a win for Jack Daniel’s, at least on the legal framework, but it also forced a more rigorous tarnishment analysis which the company’s case hadn’t been built to survive, says Mike Hobbs, partner at Troutman Pepper Locke.
• The Ninth Circuit had to evaluate tarnishment on a clean slate, without the protective buffer of the Rogers test, and apply a stricter doctrinal standard, he explains.
• “Under that framework, Jack Daniel’s’ evidentiary record simply couldn’t hold up,” he says.
• According to Hobbs, the court’s conclusion that OLD NO 7 was not independently proven famous eliminated the entire OLD NO 2 parody as a basis for tarnishment.
• “The expert testimony that may have been sufficient under the old, more plaintiff-friendly framework didn’t survive scrutiny once the court required product-specific evidence of likely reputational harm rather than generic consumer psychology research,” Hobbs poses.
• “Any pending tarnishment case involving an obviously humorous junior product – particularly in the pet, novelty, or entertainment space – just got harder for the plaintiff,” he says.
• …
• Hobbs describes the ruling as a meaningful recalibration of the tarnishment doctrine, arguing that the “fame-by-mark holding” will reshape how brand owners build dilution cases.
• “Fame is not like an Amazon Prime account that gets passed around from family member to family member,” he says. “You can no longer treat a brand family as a single famous entity and expect to protect every element of it.”
• The decision clarifies that “fame is mark-specific, not brand-specific”, Hobbs states, which is a “significant limitation”.
• “The lesson is that brand owners that have invested in building enterprise-level brand recognition may have less coverage than they assumed if they haven’t specifically documented fame for each element they want to protect,” he says.
• “Famous-mark status is not a blanket that covers everything that looks like your brand.”
• …
• Hobbs similarly advises brand owners to audit which specific marks can actually be proven famous, including through survey evidence, before pursuing litigation.
• If a brand owner intends to allege tarnishment against a parody, it should commission consumer research focused on the specific product at issue, he says.
• “Generic expert testimony about how disgust works psychologically is not going to carry a federal trial,” he adds.
• Brand owners should also undertake an “honest pre-suit assessment of whether the parody is actually harming your brand or just making you uncomfortable”, Hobbs advises.
• “Courts are increasingly sceptical of tarnishment claims that are really about brand control rather than genuine reputational injury.”
• …
• While the Ninth Circuit decision sets a “national consensus” on the role of parody in tarnishment analysis, Hobbs notes that a significant constitutional question remains unresolved.
• “The Ninth Circuit declined to rule on VIP’s argument that the tarnishment provision itself is unconstitutional, so that issue is still alive for the right future case,” he says.
• “The next parodist who doesn’t have the facts VIP had may take a very different run at it, and at that point courts will have to confront whether the government can restrict expression simply because a famous brand finds it distasteful,” Hobbs urges.
• “That’s the sleeper issue in this entire body of law.”
• …
• “This is the practical advice most brand owners don’t want to hear: consider whether 12 years of litigation and a Supreme Court trip has done more reputational damage to your brand than the dog toy ever would have,” Hobbs poses.
• “Bad Spaniels was a regional novelty product. It’s now a household name because Jack Daniel’s made it one.”
• Had Jack Daniel’s, for example, responded with a joke on social media and moved on, the brand may have emerged in a stronger position, Hobbs suggests.