The U.K. Advertising Standards Authority (ASA) has upheld a complaint against Internet advertisements for Drink Doctor Ltd.’s alcohol delivery service, ruling that two banners on the company’s Facebook page “drew a link between provision of alcohol and the provision of medical assistance.” In its ruling, the agency contends that even though consumers were unlikely to confuse Drink Doctor with genuine medical assistance, the use of medical imagery “presented alcohol as a product to be used in the same manner” as medicine. ASA also takes issue with the “boozebulance” vehicle and emergency phone number featured in the ads, as these reportedly implied that alcohol beverages were “necessary and indispensable.” “We also considered that the name ‘Drink Doctor’ in itself contained the same implication by conflating the role of a medical professional with the provision of alcohol,” concludes the ruling, which orders Drink Doctor to refrain from using medical imagery or terminology…
Tag Archives alcohol
With the launch of services targeting the grocery and alcoholic beverage segments, Amazon.com, Inc., has garnered media attention for its latest forays into a new and competitive marketplace. In a September 1, 2015, article, The Los Angeles Times compares Amazon’s Farmers Market Direct program to other food delivery startups aiming to bring fresh local products from farm to doorstep. A partnership with Connecticut-based Fresh Nation, the Farmers Market Direct program seeks to connect Southern California agricultural producers to Amazon’s consumer base, promising food delivery within 36 hours of harvest. As the Times notes, “Development of food-delivery technology has attracted an enormous amount of money. About $710 million was invested in the segment in the first half of 2015, more than the $681 million invested all of last year.” Meanwhile, The Wall Street Journal reports that Amazon’s one-hour delivery service for alcohol beverages joins “more than a half-dozen alcohol delivery startups……
Video publisher The Criterion Collection has filed a trademark dilution suit against Whole Foods and an alcohol supplier alleging that a line of wines introduced in June 2015 infringed on its name. The Criterion Collection v. Whole Foods Mkt., No. 15-7132 (S.D.N.Y., filed September 10, 2015). The Criterion Collection has licensed and published classic films with additional “value added” content since 1984, beginning with Citizen Kane. “To the consuming public, ‘The Criterion Collection’ has become, over time, broadly associated with technical excellence, artistic value and cultural importance,” the complaint asserts. In 2015, Whole Foods and Winery Exchange, Inc. began selling “Criterion Collection” wine purported to be hand-selected by the grocery chain’s master sommelier, Devon Broglie. The Criterion Collection alleges that this use infringes its trademark under the Lanham Act and New York law and seeks a permanent injunction and damages. Issue 578
Deep Ellum Brewing Co. has filed a lawsuit against the Texas Alcoholic Beverage Commission challenging the constitutionality of Texas Alcohol Beverage Code provisions forbidding brewers from selling their alcohol products on-site for off-premises consumption. Deep Ellum Brewing Co. v. Tex. Alcoholic Beverage Comm’n, No. 15-0821 (W.D. Tex., filed September 14, 2015). Dubbing the campaign “Operation Six Pack To Go,” the brewery argues that distilleries, wineries and brewpubs can sell their products in to-go packaging but breweries cannot, resulting in an unconstitutional distinction in the law. Texas alcohol codes distinguish between manufacturers, distributors and retailers, prohibiting overlapping ownership but creating exceptions for particular conditions, the complaint asserts. One such condition allows manufacturers to act as retailers in certain situations, such as at wineries and brewpubs. Deep Ellum Brewing alleges that because of this provision, it “has lost and continues to lose business (and resulting profits) because it cannot sell its product on-site…
A California federal court has dismissed a putative class action alleging that Jim Beam Brands and Beam Suntory Import mislabel Jim Beam® bourbon bottles because the label calls the product “handcrafted” despite its machine-based manufacturing process. Welk v. Beam Suntory Imp. Co., No. 15-0328 (S.D. Cal., order entered August 21, 2015). The plaintiff had alleged that a reasonable consumer would be fooled by the bourbon label because the production process for the “handmade” product requires “little to no human supervision, assistance or involvement.” Details about the complaint appear in Issue 556 of this Update. The court first denied the distillery’s motion to dismiss under California’s safe harbor doctrine, finding that although Jim Beam could prove the Alcohol and Tobacco Tax and Trade Bureau had approved the label, the evidence did not indicate whether the agency investigated and approved including decisions finding for Jim Beam and its sibling brand Maker’s Mark®,…
Sazerac Co., maker of Fireball® cinnamon whiskey, has filed a trademark infringement action against Stout Brewing Co. alleging that the brewer’s Fire Flask displays trademarks and trade dress designed to look like Fireball®. Sazerac Co., Inc. v. Stout Brewing Co., No. 15-0107 (W.D. Ky., filed August 14, 2015). Fire Flask is a malt beer product sold in clear bottles with a red cap and a front label featuring an illustration of a “demon-man with flames emanating from his head” in an “orange-yellow, red, and black” color scheme. The Fire Flask mark “is likely to give rise to confusion among consumers as to the source or sponsorship of Defendant’s products,” the complaint asserts. Sazerac seeks an injunction, corrective advertising, product recalls, an accounting, treble damages, and mark invalidation by the U.S. Patent and Trademark Office. Issue 576
A consumer has filed a lawsuit against Fifth Generation, Inc. alleging that its Tito’s Handmade Vodka® is not “handmade” as claimed on the label because it is produced through a mechanized process. Wilson v. Fifth Generation, Inc., No. 15-561 (M.D. Ala., filed August 5, 2015). The complaint joins a number of other lawsuits alleging similar facts and claims against Tito’s Handmade Vodka®. Fifth Generation has filed a motion to dismiss a similar lawsuit in Massachusetts federal court, arguing that the claims have “no basis in law or common sense” and no reasonable person could believe that a product sold nationally “was made exclusively in human hands in some backwoods, ad hoc operation, without any mechanical equipment.” Emanuello v. Fifth Generation, Inc., No. 15-11513 (D. Mass., motion filed August 5, 2015). In May and July 2015, courts dismissed lawsuits targeting “handmade” claims made on Maker’s Mark® labels, finding that the “handmade” claim “obviously cannot…
Two consumers have filed a lawsuit against Diageo PLC alleging that Red Stripe® is falsely marketed as Jamaican because it has been brewed and bottled in Latrobe, Pennsylvania, since 2012. Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., filed July 29, 2015). Red Stripe® packaging “boldly states that it is a ‘Jamaican Style Lager’ that contains ‘The Taste of Jamaica,’” and displays the logo of the Jamaican brewery that previously made it, the complaint asserts. “The only clue that Red Stripe is no longer a Jamaican beer is that on the border of the new labels, in obscure white text, the bottle says: ‘Brewed & Bottled by Red Stripe Beer Company Latrobe, PA.’” The plaintiffs argue that the text cannot be seen on packages of 12 bottles of Red Stripe® and is only visible on packages of six if a single bottle is removed and examined. Consumers pay higher prices…
A California federal court has dismissed a putative class action against Maker’s Mark Distillery, Inc. alleging that its whiskey is mislabeled as “handmade” because it uses machines to produce the product. Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., order entered July 27, 2015). Additional information about the complaint appears in Issue 548 of this Update. The court first denied the distillery’s motion to dismiss on safe harbor grounds, finding that the record is unclear as to whether “handmade” claims fall within the purview of the Tobacco Tax and Trade Bureau. The decision then turned to whether the public would likely be deceived by the “handmade” label. Maker’s Mark cited a May 2015 decision in a similar lawsuit finding that a reasonable person would understand that “handmade” is not meant to indicate that substantial equipment was not used in production, and the court found the reasoning persuasive. “This…
Diageo Great Britain Ltd. reportedly plans to appeal the U.K. Advertising Standards Authority’s (ASA’s) decision to ban a Smirnoff ® advertisement for allegedly violating the marketing rules for social responsibility in alcohol marketing. Upholding its own complaint, which claimed that the ad in question linked social success to alcohol consumption, ASA found that “the ad’s presentation implied that before the visitor asked for an alcoholic drink, the bar was cold and uninviting and that once his drink had been ordered, the bar changed and became livelier and more fun.” Diageo disputed this interpretation, arguing that the TV spot showed the bar “tilting” to filter out the elements that gave it an unwelcoming atmosphere. According to the ruling’s summary of Diageo’s response, “The tilt acted as a physical division within the ad and where the pretentious items in the first scene were filtered out and the bar now had a warm…
