Alcohol, Language, and the Law


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Legal disputes have become increasingly common among breweries and distilleries. Companies are litigating not only over trademark confusion, but also the meanings of words like "craft" and "handmade." The outcome of some of these suits may have wider implications, impacting how certain beverages are labeled.

Your mother always said to watch your language, and that advice is better than ever in the current alcohol and spirits market. As the number of smaller-scale beer and beverage makers is burgeoning, so too is the number of trademark issues pertaining to them. Sometimes trademark disputes pertain to the name, logo, or slogan for a product; other times, they center on the definitions of commonly-used
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words. Here, a rundown of recent trademark disputes by type of alcohol.

Beer

Craft brewer She Beverage is proud to be a woman-owned business and wants you to know that it’s the Queen of Beers… But not if the King of Beers has anything to say about it. Anheuser-Busch InBev has filed an opposition to She Beverage’s trademark application for the phrase “Queen of Beers,” arguing that it is too similar to the Budweiser “King of Beers” trademarks. The question hinges on whether consumers are likely to be confused when the see the “Queen of Beers” slogan to the point that they think that those products are affiliated with Anheuser-Busch. She Beverage rightfully points out that Anheuser-Busch does not have a trademark for the “Queen of Beers.” At the same time, the Trademark Trial and Appeal Board (“TTAB”)—which will decide whether She Beverage should continue to be allowed to use the mark—has previously disallowed the use of the “Queen of Beers” by another company.

MillerCoors has seen the popularity of its Blue Moon Belgian-style brew skyrocket over the past several years. Yet along with its success came the question: is Blue Moon a “craft” beer? While the Brewers Association has propounded a definition of a “craft brewer,” it is not a legal definition of the term. According to one disgruntled consumer, MillerCoors willfully hides its ownership of Blue Moon and markets the beer as “Artfully Crafted” in order to justify charging up to 50% more than for other beers in the MillerCoors portfolio. MillerCoors was sued over this purportedly deceptive behavior, but the court found the brewer's statements to be puffery which was not legally actionable. The case was dismissed with prejudice, so it cannot be brought again.

A dispute was also "brewing" over the phrase “LMFAO.” First it was an acronym indicating a raucous amount of laughter, then it was the name of a band, then it became the name of a beer. But the band LMFAO is none too amused about a Michigan brewery’s LMFAO (Let Me Fetch Another Oatmeal) Stout—even though the band’s trademark does not apply to the alcohol market. The parties settled early and LMFAO Stout ended up being able to keep its name.

Wine

Not a fan of beer? Don’t worry, there’s some legal action on the wine front too. Earlier this year, Union Wine Co. sent a letter to competitor FN Cellars over the latter’s “Bella Union” wine trademark, which was registered by the United States Patent and Trademark Office (“USPTO”) last year. Union Wine Co. asked FN Cellars to discontinue its use of the Bella Union mark due to the likelihood that consumers would believe Bella Union was associated with Union Wine. Union Wine Co. asserted that it would seek to have the Bella Union mark cancelled if FN Cellars didn’t comply with the request. So FN filed an action in federal court seeking a declaration that its mark was valid. Union Wine moved the court to dismiss the case, arguing that the court had no jurisdiction because the matter was simply a trademark cancellation action which should be heard by the TTAB. The court disagreed, finding that Union Wine’s letter was a threat which legitimately created a reasonable apprehension of litigation for FN. Accordingly, the court did not dismiss FN’s suit against Union Wine. However, the parties eventually settled.

Spirits

Have you ever had a Dark N’ Stormy? This drink features ginger beer and rum—but not just any rum. The original Dark N’ Stormy was made with Gosling’s Rum, and the company wants you to know that. Gosling’s has had multiple trademarks for Dark N’ Stormy registered with the USPTO starting in 1991. The Gosling brothers recently brought suit against Pernod Ricard for publishing a recipe for a Dark N’ Stormy featuring Pernod’s own Malibu Spiced Rum. The complaint argues not only that Pernod’s recipe has the potential to damage Gosling’s business, but that the recipe itself is wrong.

So when you think of a Dark N’ Stormy, you should think of Gosling’s. Now, what do you think of when you hear the word “handmade?” A couple of plaintiffs decided to interpret the word literally and sued Maker’s Mark under California’s false advertising statute for crafting its “handmade” bourbon with machines. This was actually the second lawsuit over Maker’s Mark’s use of the term. Both cases were dismissed with the courts in both California and Florida finding that no reasonable consumer would interpret “handmade” to mean that the bourbon was crafted entirely by hand. The California court noted as well that Maker’s Mark clearly explains its manufacturing process on the product’s labels.

One more linguistic argument (are you noticing a theme here?). Prichard’s Distillery, which has a registered trademark for “Benjamin Prichard’s Double Barrel Bourbon” has sued Sazerac for using the phrase “double-barreled” on its whiskey labels. Sazerac argues that regardless of Prichard’s trademark, the latter has no protectable rights in the phrase because it is commonly used in the spirits industry to describe an aging process. Sazerac argues that “double-barreled” is either generic and therefore not registrable, or at the very least merely descriptive. If the mark is deemed merely descriptive, Prichard’s would need to be able to demonstrate that the public associates the phrase with that particular brand. This is not the first time Prichard’s has sued Sazerac, and one imagines it won’t be the last.

Ultimately, whatever your alcohol of choice, there's probably an interesting legal battle relating to it.

ABOUT THE AUTHOR: The Lomnitzer Law Firm
Experienced in representing entrepreneurs, artists, inventors and businesses in all facets of intellectual property law, we are well suited to counsel in all related business matters, from registration to infringement litigation. We are a full service South Florida law firm practicing in the areas of copyrights, trademarks & patents; music, film, theater & sports law; multimedia & technology law; cyber law & internet attacks; commercial & civil litigation; and business entity formation. We also provide advice and legal services in the areas of business law, defamation and publishing.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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