A California winery has filed a complaint against Anheuser-Busch, LLC seeking a declaration that the winery has not infringed any of the brewer’s protectable trademark rights and that the winery’s use of the BOW TIE word mark and Bow Tie slogan to sell its wine “does not constitute unfair competition.” San Antonio Winery, Inc. v. Anheuser-Busch, LLC, No. 12-7067 (C.D. Cal., filed August 16, 2012). The winery claims that it started using the BOW TIE word mark in the United States in 2012 and had filed a trademark application for the mark in November 2011. After the application was published for opposition, Anheuser-Busch allegedly demanded that the winery abandon the application and refrain from using the BOW TIE word mark on the ground that the brewer held design marks depicting bow ties and that “there is a likelihood of consumer confusion, mistake, or deception between San Antonio’s BOW TIE Word Mark…
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A Texas appeals court has dismissed product liability and negligence claims filed by a woman injured when she was struck twice in the face with a longneck beer bottle during a birthday celebration at a bar known for its violence. Gann v. Anheuser-Busch, Inc., No. 08-00017 (Tex. App., 8th Dist., July 25, 2012). Affirming the trial court’s grant of the defendants’ motion for summary judgment, the appeals court determined that the plaintiff “failed to produce more than a scintilla of evidence that the longneck bottle was defectively designed so as to render it unreasonably dangerous and failed to establish that Appellees owned her a legal duty to protect her from the criminal acts of a third person.” Specifically, the court found insufficient evidence that the risk of injury from the bottle’s design outweighs its utility despite the plaintiff’s assertions that “beer bottles are used commonly in assaults in the local…
FDA has issued a request for comments on a proposed information collection that will add the manufacturers of certain beers as respondents to its labeling regulations and seeks Office of Management and Budget approval of allergen labeling for these beers. The agency explains that after the Alcohol and Tobacco Tax and Trade Bureau determined that certain beers, which are made from substitutes for malted barley, such as sorghum, rice or wheat, do not meet the definition of “malt beverage” and are thus not subject to its regulations, the Food and Drug Administration (FDA) prepared draft guidance to assist these manufacturers in complying with its labeling regulations. On the basis of the labeling regulations discussed in the guidance, the agency provides estimates of the average burden per disclosure for each regulation— that is, “12 respondents will each label 2 products annually, for a total of 24 labels” and “the manufacturers will…
A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest. A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have…
The Johns Hopkins Bloomberg School of Public Health’s Center on Alcohol Marketing and Youth (CAMY) has issued a May 1, 2012, report claiming that the majority of states have failed to adequately address youth exposure to alcohol advertising. According to a concurrent press release, CAMY researchers apparently reviewed state advertising laws to determine whether each law incorporated all, some or none of eight “best practices” designed to limit alcohol advertising that is likely to be viewed by children and underage youth. Their results purportedly revealed that no state successfully applied more than five of the eight recommended policies and only 11 states used more than one. In particular, CAMY has urged states looking to reduce youth exposure to alcohol marketing to (i) “prohibit false or misleading advertising;” (ii) “prohibit alcohol advertising that targets minors”; (iii) “establish jurisdiction over in-state electronic media (TV and radio)”; (iv) “restrict outdoor alcohol advertising in…
The Mexican owner of U.S. and Mexican trademarks for an “automatic pistol-shaped bottle design . . . used in connection with alcoholic beverages, with the exception of beers” and its exclusive U.S. distributor have filed trademark infringement claims against the company that sells, markets and imports into the United States Eagle Shot Tequila® in a pistol-shaped bottle. Mexcor Distribs. Inc., v. Purveyors LLC, No. 12-1240 (S.D. Tex., filed April 19, 2012). The plaintiffs allegedly demanded that the defendant cease and desist from doing so, and the defendant failed to respond. Seeking preliminary and permanent injunctive relief, the plaintiffs also seek an accounting and payment of profits earned from the date of first use of the mark, treble damages, attorney’s fees, and costs. They allege trademark infringement and unfair competition under the federal Lanham Act, as well as Texas common law on trademarks and unfair competition. According to the complaint, the defendant’s…
The U.K. Advertising Standards Authority (ASA) has upheld a complaint alleging that a radio advertisement for Budweiser® beer violated rule 19.6 of the Broadcast Committee of Advertising Practice code by linking the consumption of alcohol to sexual success. According to ASA, the ad produced by AB InBev UK Ltd. featured a male speaker modeled after “the typical American football coach” giving “a motivational style speech” to other male characters preparing for the evening ahead, which would likely include meeting new people. Although InBev argued that the commercial did not explicitly link consumption of its product to sexual prowess but instead “drew upon the commonly attributed American values of optimism, free-spiritedness and a positive attitude,” ASA interpreted the message as implying that “on such nights [] unexpected and significant events, including conception, could take place.” “We considered the ad was likely to be understood as suggesting the group was preparing for…
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.
The European Union Court of Justice has determined that Anheuser-Busch and Czech competitor Budejovicky Budvar may both use the Budweiser trademark in the United Kingdom. Budejovicky Budvar v. Anheuser-Busch Inc., No. C-482/09 (ECJ Sept. 22, 2011). Emphasizing the exceptional circumstances of the case, the court found that because the companies used the marks in good faith for nearly 30 years and because U.K. consumers “are well aware of the difference between the beers of Budvar and those of Anheuser-Busch, since their tastes, prices and get-ups have always been different,” the company that owns the earlier trademark cannot “obtain the cancellation of an identical later trade mark designating identical goods.” The court relied on European law to decide the case and in so doing rejected an advocate general opinion that indicated the issue must be decided as a matter of national law. Information about a related decision appears in Issue 388 of…
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…
