litigation

We have kept a close watch on the Atlas v. Whitaker case because it’s so close to what we handle on a daily basis whether the government is open or not. We covered the federal shutdown generally on January 12th, here, and we covered the Atlas case 12 days later as here.

Today we have a dialogue with Alan Gura, the famous lawyer handling the Atlas case. Alan is famous for winning the Heller case in the U.S. Supreme Court, and also for winning the Flying Dog beer case (about Raging Bitch as a brand name for beer). Alan has been named among the 100 Most Influential Lawyers in America by the National Law Journal, and “has also argued cases before ten federal courts of appeals and numerous federal district courts throughout the country. … Gura also teaches strategic litigation as an adjunct Professor of Law at Georgetown University, and is proud to have litigated the demise of various unconstitutional statutes and ordinances.” He has served as counsel to the United States Senate Judiciary Committee, and as a Deputy Attorney General for the State of California. He has also worked at a big litigation firm and served as a clerk for a U.S. District Court judge. Earlier this week I sent Alan some questions about the case,...

I stumbled upon an interesting article in the Kentucky Journal of Equine, Agriculture, and Natural Resources Law of all places. Even though it’s based in Kentucky, I am startled to see that perhaps Mark Brown missed this, in the wee hours of the night, when he combs through the booze press near and far.

The article is entitled “‘Handmade’ or ‘Made By Hand’: Assessing Alcohol Labeling Practices and Evaluating a Popular Consumer Class Action.” It came out during the past year or so. I have followed the handmade litigations, a lot, in these pages. So I don’t want to rehash that stuff. I will mostly highlight a few points in this law review article, by then law student Hannah Simms. She says:

• “In 2013 alone, the alcoholic beverage industry in the United States generated nearly $456 billion in total economic activity.” This seems mighty high to me.
• “… courts have been entirely inconsistent on whether or not to apply safe harbor provisions contained in a majority of state deceptive and unfair practice laws.“

Noting that the trends are not yet settled, the author wraps up by saying:

If the courts are unwilling or unable to address the situation, the responsibility to take action to protect the industry must shift to the TTB. The TTB could provide clarification of the...

Johnny Love Beverage Company LLC (“JL”) and Jim Beam Brands Co. (“Beam”) are fighting over the right to use “sexy lips” imagery on flavored vodkas. JL’s logo (the subject of U.S. trademark registration no. 4,044,182; shown below left) dates back to 2005, and is described by Johnny Love’s creator and namesake Johnny Metheny as “definitely sexy.” Metheny apparently felt the same way about Beam’s new logo, adopted in 2011, (shown below right), and sued Beam in federal district court for trademark infringement, false designation of origin, and unfair competition.

After filing suit, JL promptly moved for preliminary injunctive relief, essentially requesting that the court order Beam to stop selling products with Beam’s new logo during the pendency of the trial. Beam cross moved for summary judgment. The district court denied JL’s motion, and, in a surprise move, sustained Beam’s motion, dismissing the case and holding, “For reasons articulated in the Order denying the Preliminary Injunction, the Court determines that no issues of material fact remain which could provide Plaintiff a basis for success on any of its claims.”

JL appealed the district court’s decision to the 9th Circuit Court of Appeals and, on July 14, 2016, the 9th circuit court issued its ruling, reversing the district court. The circuit court held that the...