The United States Supreme Court has denied Jack Daniel’s distillery’s petition for a writ of certiorari from a Ninth Circuit decision holding that a dog toy seller’s use of the Jack Daniel’s trademarks and label design is expression protected by the First Amendment.

VIP Products had released a dog toy that resembled the well-known Jack Daniel’s bottle, changing the wording of the familiar label to include blunt jokes and word-plays on the messier aspects of having a dog in the house. Jack Daniel’s demanded that VIP cease all further sales of the toy. VIP filed suit seeking a declaration of non-infringement, of non-dilution, and that Jack Daniels was not entitled to trademark protection for its trade dress and bottle design. Jack Daniel’s counterclaimed, alleging trademark infringement and dilution by tarnishment. The district court agreed with Jack Daniel’s, rejecting VIP’s nominative fair use and First Amendment defenses. The court found trademark infringement and dilution by tarnishment, enjoining any future sales of the dog toy.