Blurring Lines Between Beer and Soda Cause TM Confusion

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By Joseph Marks

Sept. 1 — The Adirondack Brewery in Lake George, N.Y., thought its Moose Wizz-branded root beer wasn’t infringing trademarks owned by Moosehead Breweries Ltd. After all, its moose-branded product doesn’t even contain alcohol.

In what may become a trend, however, a federal jury decided Aug. 26 that Adirondack was wrong ( Moosehead Breweries Ltd vs. Adirondack Pub and Brewery Inc., 1:15-cv-00260, N.D.N.Y., jury verdict, 08/26/2016 ).

The case points out the increasingly blurred lines between beer and other beverages, trademark attorneys say, especially as traditional breweries increasingly produce hard and non-alcoholic root beer and other sodas.

It also demonstrates that attorneys working in the alcoholic beverages field must do a lot more leg work than they did a decade ago to make sure their clients’ products don’t infringe anyone else’s trademarks, the attorneys say.

“It used to be all you needed to search was the adult beverage category and even your particular segment—beer, wine or spirits—and you could be confident you were not infringing someone else’s intellectual property,” said Richard Blau, chair of GrayRobinson PA's Alcohol Beverage and Food Department. “Now, suddenly, the law is the same but it has broader applications because users can be confused by an adult beverage that looks remarkably like a non-alcoholic beverage.”

Anheuser-Busch Inc. subsidiary the Best Damn Brewing Company, for example, produces alcoholic root beer, cherry cola and apple ale. Sam Adams brewer The Boston Beer Company Inc. produces Coney Island Hard Root Beer, and Mike’s Hard Lemonade Co. produces numerous spiked versions of traditionally virgin drinks.

“A lot of millennials are lawful adult beverage consumers now who really haven’t outgrown their taste for the kinds of beverages they enjoyed before they became adults,” Blau said.

Blurred Lines

It was this line blurring between beer and soda producers that led Moosehead to oppose Adirondack’s attempt to trademark the “Moose Wizz” name in 2014 and to sue for infringement the next year, the Canadian brewery’s attorney Michael Garvin told Bloomberg BNA.

In addition to using the word “moose” in the root beer’s name, Adirondack’s Moose Wizz also carries a moose head graphic on its logo similar to the Moosehead logo, Garvin noted.

“They couldn’t let it go without essentially damaging the brand,” he said.

Moosehead also argued in an Aug. 1 trial brief that the name Moose Wizz “depicts the Moose marks in an unwholesome or unsavory manner,” and that the word “Wizz” is “unflattering and unsavory, especially when used in connection with food and beverages – it conjures [images] of waste, urine, and excrement and the consumption thereof.”

Moosehead has challenged dozens of moose-related trademarks at the Trademark Trial and Appeal Board but has only litigated one other trademark case in federal district court. The St. John, New Brunswick, brewery settled that case against Big Sky Brewing Co., the maker of Moose Drool Brown Ale, in 2004, Garvin confirmed.

More Microbreweries

This market muddling has been exacerbated by immense growth in the number of U.S. microbreweries in recent years, many of which have branched out into non-alcoholic beverages to distinguish themselves and to appeal to a broader market, Garvin said.

There were 1,813 breweries in the U.S. in 2010, compared with 4,269 in 2015, according to the Brewers Association, a trade group.

Adirondack Brewery downplayed confusion in its Aug. 1 trial brief, dismissing hard root beer as “a 2015 summer fad.” The brief notes that Adirondack has no intention of making hard root beer, and Moosehead does not make soft drinks.

“The markets for soft drinks and for beer are very different,” it states.

Adirondack attorney Charles Knull also cited the explosion of microbreweries in an interview with Bloomberg BNA and expressed concern that the jury verdict could make it harder for small brewers to market their products.

“There’s enough bumping into each other already,” he said. “I’ve talked to my buddies in the trademark field and their jaws are on the floor. It’s going to create a lot of problems.”

Adirondack has not decided yet whether it will appeal the verdict, Knull said.

‘The Perfect Storm'

Paul Havel, an intellectual property attorney who leads Miller Nash Graham & Dunn firm’s alcoholic beverage team, cautioned against drawing too many broad conclusions from the Moosehead case.

“This case was a perfect storm,” he said. “It had all the hallmarks of it going the way it did because of facts that were specific to it.”

Specifically, Moose Wizz contains the word moose, had a moose head logo and was produced by a company that typically makes beer rather than soft drinks.

“With those three factors, I think the jury decided it right,” he said. Without all three, though, the case is less clear, he said.

“The work us trademark lawyers have to do to clear marks for breweries has gotten a little more difficult,” Havel said. “This has created a new layer of possible confusion, but I think it’s an extreme case.”

To contact the reporter on this story: Joseph Marks in Washington at jmarks@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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