Fifth Generation, Inc. will reportedly discontinue advertising asserting that its Tito's Handmade Vodka scored higher in taste tests than four of its competitors. Absolut Spirits Co. challenged the advertising claims before the National Advertising Division (NAD), arguing that the tests were completed before 2010 and are therefore outdated. Further, Absolut argued, the challenged ads implied that the taste tests occurred as comparisons between the five brands rather than five independent tests that were not conducted concurrently. In lieu of offering substantiation, Fifth Generation opted to permanently and voluntarily discontinue the claims.
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A Texas appeals court has held that Mark Anthony Brewing cannot produce and label a house-brand beer for TGI Friday’s restaurants because state law prohibits “overlapping” relationships among alcohol manufacturers, distributors and retailers. Texas Alcoholic Beverage Comm’n v. Mark Anthony Brewing, Inc., No. 16-0039 (Texas Ct. App., entered October 13, 2017). The Texas Alcoholic Beverage Commission (TABC) rejected Mark Anthony Brewing's application for approval of the beer labels, which it created as part of a licensing agreement with TGI Friday's, on the grounds that Texas’ “tied-house” statutes prohibit such business relationships. Specifically, TABC found, the agreement violated the part of the administrative code providing that “[n]o application for a label shall be approved which indicates by any statement, design, device, or representation that the malt beverage is a special or private brand brewed or bottled for, or that includes the name, trade name, or trademark of any retailer permittee or…
Jimmy Buffett’s Margaritaville Enterprises, which owns trademarks on the phrase “It’s Five O’Clock Somewhere" and several variations, has challenged The Veteran Beverage Company's application to register "It’s 1700 Hours Somewhere.” Margaritaville Enters. v. Veteran Beverage Co., No. 91236809 (T.T.A.B., filed September 22, 2017). The notice alleges that the trademark application is for beer, which is closely related to Margaritaville’s beverage and bar services marks, and that the only difference is that it shows 5:00 p.m. in military time.
A New York federal court has denied class certification to a plaintiff alleging that Fifth Generation, Inc. falsely advertised Tito's Handmade Vodka, ruling that the plaintiff failed to propose a model to measure the alleged price premium. Singleton v. Fifth Generation, Inc., No. 15-474 (N.D.N.Y., entered September 27, 2017). The court noted that the plaintiff had satisfied certification requirements, but because he testified that he did not intend to purchase the product again, he had no standing to seek injunctive relief. In addition, the plaintiff's failure to provide a "suitable model to measure the alleged price premium for Tito’s vodka due to the ‘handmade representation’” led the court to rule that common issues did not predominate over individual ones. Additional details appear in Issue 590 of this Update.
Following a bench trial, a California federal court has ruled that Fetzer Vineyards, Inc.’s “bourbon barrel aged” 1000 Stories red zinfandel wine, which features a sketch of a buffalo on its label, does not infringe the trademark or trade dress of Sazerac Co.’s Buffalo Trace bourbon. Sazerac Co. v. Fetzer Vineyards, Inc., No. 15-4618 (N.D. Cal., entered September 19, 2017). “This case was not close,” the court said. Sazerac “did not establish that Buffalo Trace’s bourbon trade dress was similar to 1000 Stories wine’s. It did not establish that Fetzer intended to infringe at the creation of its product or in its marketing. There was no evidence of actual confusion between the products … and no indication that consumers of 1000 Stories are even aware of Buffalo Trace.” The court had already limited Sazerac’s potential recovery to attorney’s fees after the company failed to provide damage calculations on a timely…
The estate of Thelonious Monk has alleged that North Coast Brewing, maker of “Brother Thelonious Belgian Style Abbey Ale,” violated the estate's trademark and publicity rights. Monk v. North Coast Brewing Co. Inc., No. 17-5015 (N.D. Cal., filed Aug. 29, 2017). According to the complaint, the estate verbally granted the brewer the right to use Monk’s name, image and likeness “for the limited purpose of marketing and distributing” the ale in exchange for the brewer’s agreement to donate a portion of the profits to the Thelonious Monk Institute of Jazz at the University of California, Los Angeles, but later revoked the rights in 2016. The estate alleges North Coast has exceeded its rights by using the musician’s name or likeness on other merchandise, including cups, hats, hoodies or posters. Alleging trademark infringement, right of publicity and unjust enrichment, the estate seeks an injunction, profits attributable to the alleged violations, damages…
Iowa health officials have warned that the copper mugs typically used to serve Moscow Mule cocktails may cause copper poisoning. The state’s Alcoholic Beverage Division warns that according to U.S. Food and Drug Administration guidelines, copper should not come into contact with acidic foods with a pH below 6, and a traditional Moscow Mule is “well below” that, according to the agency. When copper or copper alloys come into contact with acidic foods, the metal can leach into the food; the agency recommends using copper containers lined with a different “nonreactive” material, such as nickel, stainless steel, enamel or ceramic. See The Washington Post, August 8, 2017. Issue 644
The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office has reversed a refusal to register “The Cannibal” as a mark for beer to Iron Hill Brewery, finding little likelihood of confusion between the beer and a restaurant called “The Cannibal Beer & Butcher.” In re Iron Hill Brewery, No. 86682532 (TTAB, entered July 28, 2017). The board found that Cannibal Beer & Butcher failed to show that consumers would be confused by Iron Hill's use of "Cannibal" because the beer product that the brewery provides is different from the restaurant services provided by Cannibal Beer & Butcher. "In light of the large number of restaurants in the United States, the facts that a single mark is sometimes used [to] identify restaurant services and beer, that some restaurants are associated with breweries, and that restaurants may sell beer are not sufficient to establish a relationship between restaurant…
The chairman of French wine merchant Raphaël Michel has been indicted on charges that he masterminded a scheme to label nearly 4 million cases of ordinary table wine as Rhône Valley wines, including Châteaunneuf-du-Pape and Côtes du Rhône. Guillaume Ryckwaert has been charged with fraud, deception and violations of consumer and tax codes. Several other company executives were taken into custody in Marseilles but released without charges. Agents of the French National Customs Judicial Service discovered the alleged scheme during a company audit in 2016. See The Times, August 4, 2017.
Scottish brewery BrewDog lost its battle to call one of its craft beers “Elvis Juice” when the U.K. Intellectual Property Office ruled that Elvis Presley’s estate still owns a trademark for “Elvis” beer. BrewDog released the grapefruit IPA in 2015, and the U.K. trademark owner, Authentic Brands Group, filed an infringement notice. The administrative body determined that consumers were likely to be confused by the names and that the average consumer would assume that the beer was produced by the Presley estate. See CNBC, July 12, 2017. Issue 641
