Robert C. Lehrman

Last month the firedragon on the right sued the firedevil on the left. This month, the devil fired back.

Sazerac at first alleged that the labeling on the left, for Stout’s beer-type product, is way too similar to Fireball’s appearance, as used for many years on its top-selling Fireball cinnamon whisky. Sazerac’s lawsuit is no big surprise because Sazerac is quite aggressive, Fireball has a lot worth protecting, and umm the products do look quite a lot alike to this casual observer. Stout tends to say the products are not alike (only one has a glass bottle, a devil, is beer-like, is American). But even Stout does not go too far in saying the products don’t look alike.

Stout argued:

Sazerac’s claims are barred because the term “fire” and all of the claimed elements of the alleged FIREBALL Trade Dress described in the Complaint are used so frequently by third parties in connection with products characterized by a cinnamon or spicy hot taste that consumers do not perceive them as identifying or signifying any particular source. The use of “fireball” to mean a spicy hot cinnamon flavor is widespread across all manner of foods and beverages, including alcoholic beverages. For example, Atomic Fireballs [were] introduced in 1954. The term “fire” is commonly used to refer to … drinks that have a cinnamon taste. Likewise, the use of “hot” colors such as yellow, orange, and red used with black, along with images of flames, other fire-related imagery, demons, or the devil himself, are so common as to be the norm in the packaging and promotion of cinnamon-flavored and hot and spicy products. The use of clear bottles to sell alcohol beverages is ubiquitous. The use of red caps is common.

Stout then shows pictures for 17 products with such elements. I am not sure if this helps or hurts because — while the other ones do share many common elements, they don’t really look like Fireball to the same extent as the product at issue. Stout goes on to set out no less than 24 defenses, and three counterclaims. Stout attempts to characterize the Sazerac image as a dragon, even though it has plenty in common with your garden variety devil (tail, generally fearsome look).

Trying to get off the defensive and onto some offensive ground, Stout’s first counterclaim is — no dragon, no infringement. Stout’s second counterclaim is, it’s tough to see a dragon without a tail. Third, Stout alleges its FIRE FLASK trademark “does not infringe any enforceable trademark rights owned or licensed by Sazerac. Accordingly, Stout Brewing is entitled to declaratory judgment of non-infringement… .”

I have a bold prediction. Fireball will not be changing its labeling anytime soon, and Fire Flask will.

I have been a lawyer for almost 30 years now. We don’t handle a lot of litigation — but this controversy du jour raises a question. Do not court claims need to pass some red face tests? Can we allege just about anything we want, if we have a PC and a filing fee? AKA:  Does this (above) look like Bud to you? If not, should legal theories be so divorced from reality that a multinational company should be able to tell a tribunal that it does?

Bud has recently alleged that the above labeling and theming tends to confuse people about how closely this beer relates to “The King of Beers.” In the August 19, 2015 TTAB Opposition, A-B lashes out, claiming that The Queen of Beers has no COLAs:  “upon information and belief, Applicant had not applied for – and still has not applied for – a federal Tobacco Tax and Trade Bureau label for its beer, which label is required to distribute alcohol interstate in the United States.” But A-B should definitely get a copy of LabelVision. With LabelVision it took less than a minute to find several such Queen of Beer COLAs, issued more than six months ago, for the She Beverage Company of Lancaster, California (defendant/applicant).

A-B claims it has been using KING OF BEERS as a trademark since at least 1951, and has about six relevant registrations, many of them incontestible. A-B asserts that “Applicant’s THE QUEEN OF BEER mark so closely resembles Opposer’s prior used and registered KING OF BEERS Marks as to be likely, when used in connection with the goods set forth in the Application, to cause confusion, or to cause mistake, or to deceive under [the Lanham Act].”

The St. Louis Post-Dispatch talked to the trademark applicant, and she said:

“There is no ‘Queen of Beer,’ and we’re a female-owned company,” she said. “I didn’t anticipate Budweiser getting their panties in a bunch.”
Rose said she’ll continue to pursue the trademark.
“It’s important for us to fight,” she said.

A-B already owns well more than 40% market share of beer in many countries. Should the company also be allowed to own KING OF BEERS, QUEEN OF BEERS, and — to use their own words — other terms “indicating supremacy, preeminence, and/or eminency” as to beer?

Poll here. TTAB documents available upon request.