A woman who allegedly created a design for Knee Deep Brewing Co. to use on its beer tap handles has sued the company for breach of contract and copyright infringement after they could not apparently come to terms over a price for her design and the company began using a similar design on its product labels. Sylvers v. Knee Deep Brewing Co., LLC, No. 11-714 (D. Nev., filed October 4, 2011). The disputed design is purportedly being used on the company’s “Beautiful Blonde” Ale; it features a woman posing before a panorama of downtown Reno, Nevada, with mountains in the background. The plaintiff, who allegedly registered the “Girl Over Reno” design with the U.S. Copyright Office, seeks preliminary and permanent injunctive relief, compensatory damages and restitution, interest, costs, and attorney’s fees.
Tag Archives alcohol
The Federal Trade Commission (FTC) has entered a 20-year consent order with Phusion Projects, LLC, the maker of Four Loko®, an alcoholic beverage that has generated significant controversy for its “super-size” container and previous inclusion of caffeine, which some allege has led to binge-drinking and adverse health effects. In re: Phusion Projects, LLC, No. 112-3084 (FTC). According to an FTC news release, “The marketers of Four Loko have agreed to re-label and repackage the supersized, high-alcohol, fruit-flavored, carbonated malt beverage, to resolve Federal Trade Commission charges of deceptive advertising.” FTC alleged that the company’s advertisements, packaging and promotional material misrepresented the amount of alcohol in its products and, in fact, implied that a 23.5-ounce can of the beverage contains the alcohol equivalent of just one or two regular 12-ounce beers. The product actually contains alcohol equivalent to 4.7 regular beers, according to FTC. “As a result, consuming a single can…
The Center on Alcohol Marketing and Youth (CAMY) has issued a report claiming that “almost 1 out of 11 radio ads for alcoholic beverages in 75 markets across the nation in 2009 failed to comply with the alcohol industry’s voluntary standard for the placement of advertising.” According to CAMY, “Approximately 9 percent of all alcohol product advertisements aired on programming with underage audiences in violation of the industry’s 30 percent standard,” thus accounting for 18 percent of youth exposure to alcohol advertising. The report also alleges that (i) 32 percent of advertising placements “occurred when proportionately more youth were listening than adults age 21 and above”; (ii) “these overexposing ads generated more than half of youth exposure to radio advertising for alcohol in 2009”; and (iii) “in 2009, girls ages 12 to 20 were more likely than boys in the same age group to be exposed to alcohol advertising for alcopops,…
A putative class action has been filed in a federal court in California against Beam Global Spirits & Wine, Inc., alleging that the company’s Skinnygirl™ Margarita beverage, purportedly created by a natural foods chef, contains sodium benzoate and other preservatives and should not be advertised and sold as a “natural” product. Bonar v. Beam Global Spirits & Wine, Inc., No. ___ (S.D. Cal., filed September 6, 2011). Alleging purely economic damages, the plaintiff seeks to certify a nationwide class of purchasers and claims that the company has violated California’s Consumers Legal Remedies Act and Business & Professions Code Section 17200 et seq., and breached express warranties. She requests compensatory and punitive damages, restitution, disgorgement, corrective advertising, injunctive relief, attorney’s fees, and costs.
California Governor Jerry Brown (D) has signed a bill (S.B. 39) prohibiting the importation, production and sale of caffeinated beer beverages in retail establishments throughout the state. Effective January 1, 2012, the legislation provides, in part, “Beer to which caffeine has been directly added as a separate ingredient shall not be imported into this state, produced, manufactured, or distributed within this state, or sold by a licensed retailer within this state.” The prohibition does not apply to beer brewed with coffee or other naturally caffeinated ingredients. Calling caffeinated beer beverages “a threat to public health,” bill sponsor Senator Alex Padilla (D-Pacoima) said the measure was adopted in response to several incidents involving underage drinkers hospitalized for alcohol overdoses after consuming caffeinated beer, which is typically packaged in large containers and has sweet, fruity flavors. “The added caffeine masks the effects of the high alcohol content, which can lead to binge…
A 33-year-old man has filed a personal injury lawsuit in a Texas federal court against companies that made and sold the Four Loko® that allegedly caused the stroke he had in October 2010 immediately after consuming two cans of the caffeinated alcohol beverage. Villa v. Phusion Projects, LLC, No. __ (S.D. Texas, filed mid-July 2010). According to the complaint, the plaintiff continues to experience health problems, including slurred speech and lack of balance. Alleging negligence and products liability, the plaintiff seeks damages in excess of $75,000, punitive damages, attorney’s fees, and costs.
The Michigan Liquor Control Commission has reportedly reversed its decision to ban sales of a Maryland-based beer with a controversial name. Flying Dog Brewery has received approval to promote and sell its “Raging Bitch” Belgian-Style IPA in Michigan. According to Flying Dog, the commission has barred the beer’s sale in Michigan since 2009, claiming its label was “detrimental to the public health, safety and welfare.” The brewery subsequently filed a First Amendment lawsuit in a Grand Rapids federal court. More information about the lawsuit appears in Issue 388 of this Update. The commission switched its position after the U.S. Supreme Court recently determined that states cannot engage in “content-based discrimination,” according to a news source. Although calling the move “a victory for craft beer,” Flying Dog has announced that it has no plans to drop its pending lawsuit. “Most companies would take what Michigan did and say, ‘Great, I can…
Insurance companies with policies covering Phusion Projects, Inc., which makes the caffeinated alcohol beverage Four Loko®, have filed a summary judgment motion in their declaratory judgment action against the company, claiming that a policy exclusion unambiguously frees them from defending or indemnifying the beverage maker. The Netherlands Ins. Co. v. Phusion Projects, Inc., No. 11-1253 (N.D. Ill., filed June 22, 2011). The companies contend that their commercial general liability and commercial umbrella policies have liquor liability exclusions that apply to actions pending in Florida, Illinois and New Jersey alleging that “Four Loko caused a particularly dangerous kind of intoxication” and seeking monetary damages for deaths and injuries. Details about a similar insurance coverage lawsuit involving other insurers appear in Issue 396 of this Update.
Selective Insurance Co. of South Carolina has filed a declaratory judgment action against Phusion Projects, Inc., which makes and sells the caffeinated alcohol beverage Four Loko®, claiming that it owes no duty to defend or indemnify Phusion in a number of pending lawsuits. Selective Ins. Co. of S. Car. v. Phusion Projects Inc., No. 11-03378 (N.D. Ill., filed May 19, 2011). The lawsuits involve claims that the product was responsible for teenagers’ deaths or injury, its promotions violated consumer protection laws, and the product’s packaging infringed trade dress. According to the insurer, (i) its policy was not in effect as to some of the plaintiffs, whose alleged injuries occurred either before the policy took effect or after the insurer cancelled the policy; and (ii) the policy’s terms expressly or unambiguously preclude coverage for certain claims, including those involving intoxication. The insurer seeks a declaration that the policy does not provide coverage for…
According to a news source, the family of a teenager has sued Phusion Projects, which makes the alcohol energy drink Four Loko®, alleging that their son’s disorientation after drinking two of the beverages led to his fatal accident. Rupp v. Phusion Projects, No. __ (Ill. Cir. Ct., Cook Cty., filed May 19, 2011). He allegedly consumed the beverage during a concert in 2010, and his parents picked him up after concert staff contacted them claiming the boy “appeared extremely intoxicated.” The family alleges that their son acted “paranoid and disoriented” on the ride home and took off running when they arrived home. He apparently died when he was struck by a car after running onto a busy highway. The family reportedly alleges in the wrongful death lawsuit that the company “was careless and negligent in formulating a caffeinated, alcoholic beverage that desensitizes users to the symptoms of intoxication, and increases…
