More On The Budweiser Lawsuit

Here at Abnormal Use, we like to keep tabs on all products, especially those that we use regularly, so we couldn’t help but notice the lawsuits filed against Budweiser’s parent company, AB InBev, for allegedly overstating the alcohol content in its beer.  According to the complaints filed in federal courts in New Jersey and San Francisco, AB InBev allegedly adds extra water to its finished products to produce beer with substantially less alcohol than what is displayed on its labels.  If this is true, it may violate various state statutes on consumer protection, as well as some Federal Trade Commission requirements.  The complaints are not limited to Budweiser, but also include Bud Ice, Bud Light Platinum, Michelob, King Cobra, Busch Ice, Black Crown, Bud Light Lime, Hurricane High Gravity Lager, Natural Ice and Michelob Ultra.  One of my favorite aspects of these cases is the factual basis for the damages alleged, so let’s take a closer look.

In the New Jersey case the purported class representative is partial to Michelob Ultra.  As an initial matter, it is utterly hilarious that anyone who regularly purchases Michelob Ultra would complain they have been deceived into purchasing “watered-down beer.”  If you can’t tell you’re drinking watered-down beer from the taste of Michelob Ultra alone, you have obviously have no idea what “beer” should actually taste like.  This is apparently the case with Brian Wilson, who is suing AB InBev based on his previous purchase of one case of Michelob Ultra per month.  Come on Brian, couldn’t you have at least saved face, claimed you were buying the Ultra for your wife, and had her file the lawsuit?  We suspect Brian’s friends are having a field day with this one.

In an added bit of embarrassment for Mr. Wilson, the California case was filed by Nina Giampaoli, a female citizen of wine-swigging Sonoma County.  Ms. Giampaoli at least has the good taste to have purchased a sixer of Budweiser per week over the past four years.  Obviously Ms. Giampaoli knows “beer,” and we can appreciate her consternation on being unable to cop a proper buzz off six Budweisers.

Now, for a real class representative we turn to the Greenbergs, who filed their case in federal court in the Eastern District of Pennsylvania.  The Greenbergs allege they routinely purchased “as many as” four cases of Budweiser a month during the past four years.  One can only assume that the Greenbergs, having filed the case in Philadelphia, are devout Eagles fans, forced to drown their sorrows week after week.  Of course, they could also be Phillies, Flyers, and 76ers fans as well, which would explain the case per week over the course of several years.  Either way, Mr. Wilson could certainly learn a thing about two about beer drinking from the Greenbergs.

We here at Abnormal Use will be keeping a close watch as these cases develop and can’t wait to see who will reign as the true “class representative” for all Budweiser lovers nationwide.  Apparently the allegations in these cases were supported by former employees of the brewery, but it will of course ultimately depend on the actual alcohol content of the beers at issue, and what constitutes “watered-down” beyond what is advertised.  As for Mr. Wilson, we invite him to put down the Michelob Ultra and experience everything real beer has to offer.  He may just decide that he wasn’t being deceived after all; he just didn’t know any better.

Sixth Circuit Prefers A Bourbon On The Porch To A Margarita On The Beach

“All bourbon is whiskey, but not all whiskey is bourbon.”  So begins an especially amusing opinion in which the the Sixth Circuit gives Jose Cuervo a history lesson on one of the pillar’s of American society: bourbon.  It is an especially American concoction, Judge Martin of Kentucky observes, one that has been enjoyed since 1774 by everyone from Elijah Craig to Ulysses S. Grant, who apparently had a preference for Old Crow.

Plaintiff Maker’s Mark Distillery, Inc. has been sealing its bottles with red wax since the 1950’s, which it registered as trademark in 1985 (Reg. No. 1469925).  In 1997, the parent company for Jose Cuervo began using a red sealing wax on its special edition “Riserva de la Familia” tequila, shown here.  Maker’s Mark took exception to the use of the red sealing wax and, after Jose Cuervo refused to change the design, filed suit for trademark infringement in 2003.

Now, most people might be reluctant to challenge the strength and recognition of Maker’s Mark’s trade dress in a U.S. District Court in western Kentucky; but hey, too much tequila can make a man do strange things sometimes.  At least Jose Cuervo was sophisticated enough to request a bench trial, taking out of play the risk that it would end up with 12 bourbon-loving Kentucky jurors.  In a shocking turn of events, the district court found that Maker’s Mark’s registered trademark consisting of its signature trade dress element – a red dripping wax seal – was valid and infringed and enjoined Jose Cuervo from using any similar design.  The Sixth Circuit agreed and upheld the district court’s award of costs to Maker’s Mark.

Trade dress is an often unnoticed, but highly valuable form of intellectual property.  Recognized as a “symbol” or “device” under the Lanham Act (15 U.S.C. § 1052), trade dress typically encompasses the actual shape or design of a product or its packaging.  Some famous examples include the Coca-Cola bottle or Tiffany’s blue box.  Unlike traditional trademarks, trade dress must have acquired distinctiveness and it cannot be “functional.”  For example, if you see a small blue box wrapped in white ribbon, you don’t have to see the Tiffany’s mark before knowing where it came from.  Showing this level of recognition at trial can require a substantial amount of evidence. In this case, the Court found that Maker’s Mark’s fifty years of advertising and substantial sales were enough to satisfy the requirement.  It also did not hurt that in 2002 Business Week declared the Maker’s Mark’s seal “one of the most recognizable in the world.”

So next time you go to buy bourbon be rest assured that if you get the bottle sealed in red wax, it’s going to be a Maker’s Mark.