PHOENIX — VIP Products asked the U.S. Ninth Circuit Court of Appeals on Wednesday to reverse a permanent injunction barring its puppy-poop-themed chew toy that parodies Jack Daniel's whiskey. The rubber squeaky toy bears the phrase "Bad Spaniels Old No. 2 on your Tennessee Carpet," a reference to the Jack Daniel's "Old No. 7 Brand" mark.

Bennett Cooper, an attorney for VIP Products, argued that consumers would not confuse the toy with the whiskey brand. "Someone seeing Bad Spaniels doesn't think Jack Daniel's," Cooper said. "It's only when you see the entirety that you even think of Jack Daniel's."

U.S. Circuit Judge Andrew Hurwitz pressed the argument from the bench. "Why isn't that enough?" Hurwitz asked. Cooper responded: "Because there's no evidence that overall appearance is famous. There's simply no evidence of fame of anything other than the name itself, Jack Daniel's." Cooper also argued that legal precedent limits judges to examining the type of product rather than the message on it, making it impossible for a dog chew toy to tarnish a liquor company's reputation.

Matthew Nicholson, an attorney representing Jack Daniel's, told the panel the toy harmed the brand. "What VIP did was they associated the brand with something that was totally incompatible," Nicholson said. "They wrote on the bottle '43% poo by volume. 100% smelly.'" He added: "They're evoking the image of a bottle of liquid feces, your honor. That is an association that is tarnishing."

Nicholson argued that judges must consider the message associated with a mark as well as the product type. "The association is established by the fact that they literally put a Jack Daniel's bottle on the table and designed their product based on it. They copied every aspect of the trademark," he said. He also said the design elements of the bottle have been featured in commercials, movies, and television shows.

Nicholson pointed to a 1986 ruling in which a federal judge declared that trading cards spoofing the Cabbage Patch Kids by depicting children with names like "Acne Amy" and "Dead Fred" violated the Cabbage Patch Kids trademark. The parties settled that case, and Topps paid $7 million and altered the Garbage Pail Kids design. He said it was the images on the cards, rather than the invocation of Cabbage Patch Kids, that proved offensive and tarnishing to the brand.

VIP Products filed a declaratory relief lawsuit against Jack Daniel's in 2014 after receiving a cease-and-desist letter. A federal judge initially rejected the company's First Amendment arguments, but a unanimous Ninth Circuit panel reversed that decision and remanded the case. After VIP Products prevailed on remand and again at the appeals court, Jack Daniel's petitioned the Supreme Court in 2023. The Supreme Court did not decide whether the toy infringed the trademark but agreed that the Ninth Circuit had gone too far in protecting VIP Products and remanded the case to the lower court. The trial court subsequently ruled in favor of Jack Daniel's and enjoined VIP Products from selling the toy. The three-judge panel did not indicate when it would issue a ruling.