{"id":459,"date":"2019-09-09T00:00:00","date_gmt":"2019-09-09T00:00:00","guid":{"rendered":"https:\/\/norrismclaughlin.com\/llb\/2019\/09\/09\/what-liquor-brands-should-know-about-trademarks\/"},"modified":"2019-09-09T00:00:00","modified_gmt":"2019-09-09T00:00:00","slug":"what-liquor-brands-should-know-about-trademarks","status":"publish","type":"post","link":"https:\/\/norrismclaughlin.com\/llb\/branding\/what-liquor-brands-should-know-about-trademarks\/","title":{"rendered":"What Liquor Brands Should Know About Trademarks"},"content":{"rendered":"

In a recent federal court ruling, a judge articulated once again why famous brands enjoy greater rights than those that lack renown<\/p>\n

The case pits two giants in wholly unrelated fields\u2014 clothing versus alcoholic beverages.<\/p>\n

The lesson? Liquor sellers should exercise caution and select brand names that are not the same or are not similar to those of existing \u201cfamous\u201d brands, even in completely unrelated fields.<\/p>\n

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The photo above depicts a pop-up store set up by Anheuser-Busch at a ski resort featuring signage stating that it would plant one tree for every case of PATAGONIA beer purchased.<\/em><\/p>\n

About the Case<\/strong><\/h2>\n

In the case, Patagonia, the clothing company, sued to stop Anheuser-Busch from using a PATAGONIA-branded beer at ski resorts in Colorado. Anheuser-Busch requested that the court dismiss the lawsuit because the PATAGONIA mark was not famous enough to enjoy protection against goods that are wholly unrelated to alcoholic beverages\/beers\u2014in this case, clothing.<\/p>\n

Patagonia relied upon the Federal Trademark Dilution Act (\u201cFTDA\u201d), which is an amendment to the Lanham Act, the federal trademark law.<\/p>\n

What You Need to Know<\/strong><\/h2>\n

The FTDA provides that if the claimant can prove that its trademark is \u201cfamous,\u201d then it may stop others from using the same or similar name even for unrelated goods. Unrelated goods are those that normally don\u2019t come from the same source as the trademark owner\u2019s. For example, clothing normally is not produced by brewers (other than perhaps to merchandise a beer brand).<\/p>\n

A trademark dilution claim under the FTDA does not require the famous brand owner to establish \u201clikelihood of confusion.\u201d That is, the claimant need not prove that consumers will believe the accused goods come from the same source as the trademark owner\u2019s. Consumers are naturally likely to believe that goods that are highly related (for example, clothing and jewelry) come from the same source\u2014that is, be confused as to whether the accused goods are the trademark owner\u2019s. But in a dilution case, the goods are, typically, completely different. As long as the trademark owner can prove fame, it need not prove the allegedly dilutive goods come from the same place as the trademark owner\u2019s.<\/p>\n

Dilution claims are premised on protecting the goodwill a famous brand owner has accrued in its mark. Typically, fame is shown through many different types of evidence, including high volumes of sales of the branded goods in a geographically wide territory for many years; long duration of, large and geographically widespread promotional spending; unsolicited press; surveys or other evidence that show a high degree of brand awareness among consumers; and ownership of federal registrations (which presumptively confer on the owner nationwide exclusive rights in its brand). In the Anheuser-Busch suit against Patagonia, the court relied upon the following evidence to determine that Patagonia had sufficiently alleged the fame of its PATAGONIA brand:<\/p>\n

What Happened<\/strong><\/h2>\n

In the Anheuser-Busch suit against Patagonia, the court relied upon the following evidence to determine that Patagonia had sufficiently alleged the fame of its PATAGONIA brand:<\/p>\n