The Seventh Circuit Court of Appeals has determined that Phusion Projects’ commercial liability insurance carriers have no duty to defend the company in actions alleging that intoxication attributable to consumption of its Four Loko® alcoholic product caused death and personal injury. Netherlands Ins. Co. v. Phusion Projects, Inc., No. 12-1355 (7th Cir., decided December 16, 2013). Applying Illinois law, the court ruled that the liquor liability exclusions in the relevant insurance contracts unambiguously excluded coverage for bodily injury or property damage when the company “may be held liable by reason of: (1) causing or contributing to the intoxication of any person.” So ruling, the court affirmed the lower court’s grant of the insurance carriers’ motion for summary judgment. Issue 508
Tag Archives alcohol
Wooden Nickel Music, which owns the copyright to the musical composition “Lady” and the sound recording embodying that composition by the group Styx, has filed an infringement action against Anheuser-Busch, LLC (AB) and a film company that purportedly created a video, currently on YouTube, including part of the recording. Wooden Nickel Music v. Anheuser-Busch, LLC, No. 13-8145 (C.D. Cal., filed November 4, 2013). The video, titled “Bud Light Commercial – The Elevator,” features a scheme in which young men cause an elevator with an attractive woman to stop between floors, so one of the men can share a beer and dance with the woman and, in the process, obtain a phone number. “Lady” is one of the songs played during the dance scene. According to the complaint, AB’s associate general counsel claims it has no record of the company “ever having seen the referenced work using Bud Light indicia” and…
For the second time in a month, attorneys with three Florida law firms have filed litigation on behalf of state consumers alleging that Anheuser-Busch Cos. (AB) sells a formerly imported beer “in a way that misleads consumers into believing that Kirin beer is still made in and imported from Japan, and accordingly sell[s] Kirin beer at prices substantially higher than those of domestic beer.” Suarez v. Anheuser Busch Cos., LLC, No. ___ (Fla. Cir. Ct., Miami-Dade Cty., filed October 25, 2013). Information about the Beck’s beer litigation, asserting virtually identical claims on behalf of a putative nationwide class against AB in federal court, appears in Issue 500 of this Update. Brought in the names of just two consumers, the Kirin beer litigation notes that external, six-pack, bottled beer packaging fails to state that the product “is brewed in the U.S.A. with domestic ingredients. In fact, the packaging for Kirin Beer…
According to a news source, Jack Daniel’s Properties, Inc. has filed a trademark infringement action against the companies that produce and sell Popcorn Sutton’s® Tennessee white whiskey. Jack Daniels Props., Inc. v. J&M Concepts, LLC, No. 13-1156 (M.D. Tenn., filed October 18, 2013). The whiskey is apparently named after an Appalachian moonshiner who killed himself rather than serve a federal sentence after he was convicted of offenses relating to moonshine production. The defendants purportedly sold their product first in mason jars, but then switched to bottles that allegedly copy Jack Daniel’s bottle—“a square-shaped bottle with angled shoulders that house a signature and beveled corners, and labeling with a white-on black color scheme, filigree designs, and font style reminiscent of that of the Jack Daniel’s trade dress,” the complaint said. Alleging willful trademark infringement, deceptive trade, fraudulent misrepresentation, and unfair competition, the company seeks injunctive relief, disgorgement of unjust profits and…
A recent study has concluded that multi-sensory environmental factors play an important role in how consumers perceive the taste of whiskey. Carlos Velasco, et al., “Assessing the influence of the multisensory environment on the whisky drinking experience,” Flavour, October 2013. Oxford University researchers apparently asked 441 volunteers to sample the same glass of whiskey while visiting each of three rooms engineered to evoke the smell of grass, the taste of sweetness and the texture of wood. Participants then reportedly rated the whiskey as (i) being grassier on the nose when they visited the room decorated with artificial turf and infused with the smell of fresh-cut grass and the sounds of sheep, (ii) tasting sweet when they visited the room with a sweet scent that was also awash with red light and high-pitched “tinkling” sounds; and (iii) having a woody aftertaste when they visited the room decorated like a cedar forest.…
A Florida resident has filed a complaint on behalf of a putative class against Anheuser-Busch Cos. (AB), claiming that since the company began producing Beck’s Beer in the United States in 2012, it has misled consumers into believing that the product is still imported from Germany where it was made with quality ingredients for more than 225 years. Marty v. Anheuser-Busch Cos., LLC, No. 13-23656 (S.D. Fla., filed October 9, 2013). According to the complaint, external packaging material does not indicate that the product is brewed in the United States with domestic ingredients, including Missouri River water. Rather, the external packaging for six- and 12-packs allegedly states that the product is “German Quality” beer “brewed under the German Purity Law of 1516” and that it “Originated in Bremen, Germany.” Individual bottles, however, state “in obscure white text on a silver background, ‘Product of USA—Brauerei Beck & Co.—St. Louis, MO.—12 FL. OZ.’”…
The Eighth Circuit Court of Appeals has found constitutional Missouri’s four-tier alcohol distribution system which includes a residency requirement for wholesalers, which comprise the third tier. S. Wine & Spirits of Am., Inc. v. Div. of Alcohol & Tobacco Control, No. 12-2502 (8th Cir., decided September 25, 2013). According to the court, the decision required it to examine the “current state of the relationship between the dormant Commerce Clause and the Twenty-First Amendment.” The former forbids discrimination against out-ofstate residents, while the latter gives states “certain prerogatives particular to the regulation of alcohol.” Missouri law requires those seeking a wholesaler license to be incorporated under the state’s laws, with all officers and directors “qualified legal voters and taxpaying citizens of the county . . . in which they reside” and “bona fide residents” of Missouri for at least three years. Resident shareholders must own at least 60 percent of all the…
A divided Fourth Circuit Court of Appeals panel has determined that a Virginia Alcohol Beverage Control Board prohibition on alcohol advertisements in college newspapers, as applied, violates the First Amendment rights of two campus newspapers because the majority of the papers’ readers are age 21 or older, and thus the rule is “not appropriately tailored to Virginia’s stated aim.” Educ. Media Co. at Va. Tech, Inc. v. Insley, No. 12-2183 (4th Cir., decided September 25, 2013). So ruling, the court reversed a district court decision upholding the rule’s validity. The board argued that the purpose of the regulation “is to combat underage and abusive college drinking.” The court majority found that, under either a strict scrutiny or intermediate scrutiny analysis, the regulation was overbroad as applied to college newspapers that were read by college students of legal age. The regulation failed, said the court, “because it prohibits large numbers of…
Boston University School of Public Health and Johns Hopkins Bloomberg School of Public Health researchers have identified the alcohol brands most frequently mentioned in popular music, raising questions about whether public health efforts should focus on reducing youth exposure “to these positive messages about alcohol use.” Michael Siegel, et al., “Alcohol Brand References in U.S. Popular Music, 2009 2011,” Substance Use & Misuse, August 2013. Relying on Billboard Magazine’s most popular song lists in the urban, pop, country, and rock categories for 2009, 2010 and 2011, the study’s authors found that 23 percent of the 720 surveyed songs mentioned alcohol and 6.4 percent included a mention of a specific alcohol brand, with four brands alone—Patron tequila, Hennessy Cognac, Grey Goose vodka, and Jack Daniel’s whiskey—accounting for more than half of all alcohol brand mentions. “Even in cases where alcohol companies are not directly promoting the mention of their brands in music…
In the first investigation subject to a pilot program, the International Trade Commission (ITC) has agreed with an administrative law judge (ALJ) that a company alleging infringement of its patents for laminated packaging by the importers of liquor, wine, toys, electronics, and cosmetics failed to show that it had a domestic industry that would be harmed by the alleged infringement. In re Certain Prods. Having Laminated Packaging, & Components Thereof, No. 337-TA-874 (ITC, decided August 6, 2013). Several alleged infringers, including Camus Wine & Spirits Group of Cognac, France, were terminated from the investigation before it was resolved on the basis of settlement agreements with claimant Lamina Packaging Innovations, Inc. of Longview, Texas. ITC has the authority to bar imports of products deemed harmful to a domestic industry and announced earlier this year that it would test expedited procedures in cases alleging unfair practices in import trade. Under the program, ITC…
