Beverage Company Sues Anheuser-Busch Over Totally Different Looking Can Design

from the that's-infringing?!? dept

Fri, Nov 19th 2010 12:19pm — Mike Masnick

Scott alerts us to the bizarre lawsuit filed by United Brands, makers of the "Dragon Joose" malt beverage, filed against Anheuser-Busch for its Tilt malt beverage, arguing that the new design of Tilt's cans represents trademark infringement, copyright infringement and unfair competition among other things. The company put out this statement:

"While we are flattered that Anheuser-Busch recognizes the considerable value of the Joose brand, it is disappointing that they have resorted to stealing our design," says Michael Michail, CEO and president of United Brands. "Their new Tilt product design intentionally infringes on our Dragon Joose Marks and is thereby benefiting from the brand equity of United Brands and its products."

Based on that, you'd have to think the two cans look pretty damn similar, right? Well, take a look:

I have to admit, that I'm at a loss. Okay, there's a (very different) dragon on each can, but the designs are totally different from one another. What, exactly, does United Brands think infringes on their copyright on the original design? I can't see anything that's copied. Same with the trademark. I can't see any likelihood of confusion here. I've seen some pretty bizarre trademark and copyright lawsuits, but I'm at a total loss as to what was infringed on here.

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Filed Under: copyright, dragon joose, lawsuits, malt beverages, tilt, trademark
Companies: anheuser-busch, united brands

64 Comments

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duffmeister (profile), 19 Nov 2010 @ 12:16pm

queue money grab from deeper pockets in .... 3..2..1..
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cjstg (profile), 19 Nov 2010 @ 12:34pm

this is about publicity. call it the reverse streisand effect. and there's a fish born every minute to give it to them. whoops did i write that out loud?
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David (profile), 19 Nov 2010 @ 12:37pm

they may be right...
Maybe the Joost guys read techdirt...

Well, they both have dragons... :-/
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Dark Helmet (profile), 19 Nov 2010 @ 12:38pm

Huh?
"Copyright Infringement!"

Er, but the designs are totall different....

"Trademark Infringement!"

Er, but the competing company put their name and logo in big bold letters, right there on the can....

"Unfair Competition!"

Okay, you know what? Come here so I can slap you....
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Anonymous Coward, 19 Nov 2010 @ 12:39pm

I dunno..
If I saw these cans next to each other in a store I would actually be inclined to think that they came from the same company. While they are clearly different they still have a similar style, at least from what I can see from the images. If it has any legal implications I can't tell, of course. That said, I wouldn't drink any of them so for me the issue is moot.
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Colin (profile), 19 Nov 2010 @ 12:41pm

It's hard to tell from the photos and I'm at work so I can't just run to the local shop to see what they look like. I'm going out on a limb here, but they both appear to be cylindrical metal cans with approximately the same dimensions...in the disfunctional world is the US legal system (at least to us outsiders), perhaps that is enough similarity?????
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interval (profile), 19 Nov 2010 @ 12:47pm

Here's the rub
Based on the lettering font and the tattoo-like designs I'm guessing these two products are going after the same ethnic market, A-B said "We need to get a piece of that market too."
making UB is nervous. Well too friggin' bad.
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Kingster (profile), 19 Nov 2010 @ 12:47pm

Re: I dunno..
I'm inclined to agree. They do look similar enough to be part of the same "line".

Now, my guess is that they wouldn't be anywhere near each other. The big distributors usually don't get crowded together, and get plenty of space. Plus, in many cases, the distributor is nearly (if not totally) in charge of their display area.
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Berenerd (profile), 19 Nov 2010 @ 12:48pm

eh...
i agree they are not overly similar, but they are not so opposite either.

http://beveragetitans.com/?p=127 (Tilt)

http://www.deathwishindustries.com/home/What%20Is%20Best/Best%20Alcohol%20and%20Guns/Joose %20and%20Four%20Maxed.gif
(Joose)

there are similarities but not enough to say its infringing IMHO
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iamtheky (profile), 19 Nov 2010 @ 12:52pm

See, Joose is getting pulled off the shelves along with four loco, so that last method of profitability is to sue. Too bad for them if you do a google image search for "23.5oz Malt" all the cans look the same.
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ChurchHatesTucker (profile), 19 Nov 2010 @ 12:56pm

Re: Huh?
I'M IN A HURRY! How can you expect me to tell the difference between a blue can and a purple can?! You should color-code these things.
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Andrew (profile), 19 Nov 2010 @ 12:57pm

It's a similar style, I guess, but I hate to think how much of the work produced by the design industry would also be infringing if this lawsuit succeeds.

Design follows trends: it's inspired by previous work and influences following work. It's not created in vacuo, and is much better, in terms of both aesthetics and usability, as a result. (None of this is news to anyone who reads Techdirt of course.)

As a side note, I would have thought that Telegraph Media Group and DC Comics (Batman) would have much stronger claims against Anheuser-Busch...
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DogBreath, 19 Nov 2010 @ 12:58pm

I'm incensed, outraged and flabbergasted!
How dare Anheuser-Busch use colors, fonts, dragons, and a can! Think of how many colorblind, illiterate, cylindrical shape susceptible and non-functioning taste bud customers will be confused by this dastardly deed perpetrated by a maniacal megalomaniac conglomerate?

What I imagine to be some the first statements in the opening argument by United Brands lawyers.
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Dark Helmet (profile), 19 Nov 2010 @ 1:03pm

Re: Re: Huh?
*SLAP!*
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MrWilson, 19 Nov 2010 @ 1:04pm

If just viewing the designs of one can from each company beside each other, you might think they came from the same line (though if you compare all canned drinks, there's quite a bit out there with the grungy tribal tattoo design style that's become popular with various sub-cultures...), but when viewed as one drink line against the other (for instance, in the pictures Berenerd linked to), it's clear they're two distinct lines.

The text is vertical on the Dragon Joose line and the text is horizontal on the Tilt line. The Dragon Joose cans all have a black background with a highlight color for decoration and the Tilt cans have the highlight color as the background color and black only for the background of the main product name area.

It just looks like a result of both companies marketing to the same sub-cultures.
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Jeff (profile), 19 Nov 2010 @ 1:09pm

Um, yes, yes it does...
So, here's what kills me about you guys at TD... you have these great ideas, like pointing out that things that are just similar are not always TM infringement, etc., but then you fall back into the bad habit of using yellow-journalism style hyperbole to try and make a point that you don't need to make.

In this case, of course those two cans look alike... and I'm not just talking about that they both have a dragon on them. The tramp stamp style line work around the product name, the fonts, the damn size... Just like someone else on here said, if I saw those on the shelf, I'd think they were from the same company.

That said, does that mean it's a TM or Copyright infringement? Maybe, maybe not... but that's for the court to decide.

I know, you don't get to be funny if you don't blow it out of proportion, but damn... ease up....
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Anonymous Coward, 19 Nov 2010 @ 1:15pm

Re: I dunno..
Ditto.

The design and style look very similar to my eyes. Also the double meaning of "tilt" implies that if you tilt the words 90 degrees you are looking at the other can.
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Anonymous Coward, 19 Nov 2010 @ 1:17pm

Re: Re: I dunno..
They are both malt beverages, of the same capacity, they would be closer together than any other type of similar drink. In stores that carry multiple brands, this would only be even more logical.
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Stephen, 19 Nov 2010 @ 1:31pm

Any press is good press
I'd never heard of Dragon Joose before this came up.
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heimp, 19 Nov 2010 @ 1:31pm

choice of the UFC generation
Ya, they both look Ed Hardy-esque to me.
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Yaniel (profile), 19 Nov 2010 @ 1:50pm

they both look like the way to common now-a-days Ed Hardy / Affliction douchebag styles. Maybe if either company tried to be original, they wouldn't be having issues.
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Dave, 19 Nov 2010 @ 1:53pm

Budweiser is the Microsoft of the beverage industry.
Bud is known for finding something good the little guy has and stealing it. This is SOP for them to try to trample micro-brews or any innovation rather than coming up with something that is not tasteless yellow fizzy beer backed by a multi-million dollar ad campaign. GFGI.
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Loki (profile), 19 Nov 2010 @ 1:54pm

I say they should take the same stand they do with tobacco products. I think they're marketing to children... make all cans white, with black Times Roman font.
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OG, 19 Nov 2010 @ 2:02pm

In a hurry
I have to agree with some of the commenters that, if I saw these cans in the same display case I would think they were part of the same line of products from the same manufacturer. I also agree with some other commenters that it is unlikely that the small company's product is going to be displayed (in most cases) in the same case as A-B products.
If the plaintiff here had a product that was being sold and now they've lost their market b/c A-B is competing, well that really does suck for them, but I doubt they'll have much recourse. Maybe they just need to lower their prices?
Query, however, if a brand other than Arizona started marketing iced tea in tall cans with South Western, Navajo style graphics I am sure that the Arizona iced tea company would go after them with everything they've got and probably win.
(Without opining as to whether or not it should be this way,) why can a large, established brand use IP laws to squash competing start-ups that are trying to hitch a ride on the existing company's "style" but a small company can't do the same when the large established company borrows from their styling?
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Marcus Carab (profile), 19 Nov 2010 @ 2:08pm

Re: I dunno..
That really doesn't matter. There is no copyright or trademark on a general design "style", like the concept of frilly calligraphic dragons, or blackletter-style text, which has been around for a few centuries. If there were, both these companies would be infringing on countless Daytona beach t-shirt booths.
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darryl, 19 Nov 2010 @ 2:08pm

"I have to admit, that I'm at a loss."
Yes, you are Mike, if you cannot easily see how similar those two graphics are, as well as the similarity of the produce, the packaging, size, font, style and so on.

But you see none of that Mike, because you are at a loss..

What do you see ? are you even looking at the same pictures ?

Ofcourse, its a standard IQ test question and indication of your intelligence to be able to see common patterns, and pick similarities, such as like designs.

If you do not have that ability, that is a problem for you, but because you cannot see what is clearly there, does not mean that it is not there at all. Just that you cant comprehend it..

Thats ok, we've come to expect little more from you, this is just interesting to guage your level of observation.

Seems there are quite a few people here that can see what you cannot.

Its ok Mike, if you cannot see they are similar, then you can just be happy in ignorance I suppose..
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Dark Helmet (profile), 19 Nov 2010 @ 2:10pm

Re: "I have to admit, that I'm at a loss."
....do I really have to edit your entire post for grammar and syntax to demonstrate why you should probably not be questioning anyone else's intelligence?
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Yaniel (profile), 19 Nov 2010 @ 2:12pm

Re: "I have to admit, that I'm at a loss."
what you might be missing is that graphics like those are the biggest trend going right now, many drinks, clothing, food, etc seems like it comes out of the same tasteless design firm.
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Mike Masnick (profile), 19 Nov 2010 @ 2:26pm

Re: Um, yes, yes it does...
In this case, of course those two cans look alike... and I'm not just talking about that they both have a dragon on them. The tramp stamp style line work around the product name, the fonts, the damn size...

If those two cans look alike, you can argue that Coke and Pepsi infringe on each other too. After all, both used to use similar gothic logos. And -- oh my! -- the cans are the same size!

I don't buy it. Similar style, but with *very* different colors, graphics and fonts, is not infringing.
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lux (profile), 19 Nov 2010 @ 2:29pm

Re: I dunno..
Any moron in a hurry can tell these cans are similar. Both have stylized dragons in a tribal pattern, contain basically the same contents, and have similar lettering. If I didn't read this article, I would believe they were pushed by the same company.

AB could have chosen an infinite number of animals or designs, yet they chose a dragon and a tribal design, which is exactly what Joose chose. But of course, having literally an infinite number of possibilities, Mike finds zero commonality between the two cans - why, cause they aren't COMPLETELY identical? No shit, but nothing can satisfy Mike's ego to not be wrong.
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lux (profile), 19 Nov 2010 @ 2:34pm

Re: Re: Um, yes, yes it does...
Not sure the last time you looked at either of those cans (Pepsi, Coke), but they are nothing alike. Although, maybe if they both had dragons and a tribal pattern they would...oh wait, but those aren't similarities, I forgot.
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lux (profile), 19 Nov 2010 @ 2:37pm

Re: Re: "I have to admit, that I'm at a loss."
You edit his, I'll edit yours:

"Copyright Infringement!"

Er, but the designs are totall different....
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Jeff (profile), 19 Nov 2010 @ 2:39pm

Re: Re: Um, yes, yes it does...
You're right, I could argue that... But I won't... Because Coke did it on their own back then, which is why the Pepsi logo and design look nothing like Coke's anymore.

Again, is that really infringement? Who knows, ask actual consumers. In this case, doubtful because AB can steal market share with ad dollars rather than cheap tricks.
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Will Sizemore (profile), 19 Nov 2010 @ 2:42pm

Maybe they should first learn to spell, "juice."

Does anyone see their kids growing up, going to the grocery store, and getting irate with the manager because they can't find, "apel joose?" Have these people seriously NOT seen Idiocracy? I hope they all get sick and then get lost on the way to the, "St. God's Hospi-
t
a
l" next door because their smartphone GPS is malfunctioning.
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Lion XL (profile), 19 Nov 2010 @ 2:56pm

It doesn't really matter..from what I understand Joose is on the FDA hit list (similar product to 4LOCO!) and as usual Annhauser Busch is late to the party(I'm assuming Tilt is one of the caffeinated Alcohol beverages).......
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Krusty, 19 Nov 2010 @ 3:09pm

hmmm...
I smell free advertising
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Jake, 19 Nov 2010 @ 3:19pm

I'm seeing a noticeable lack of imagination on the part of Anheuser-Busch's design team, but if uninspired follow the leader cash-ins become grounds for copyright and/or trademark lawsuits, every major movie studio and publishing company in the developed world would go bust in a week...

Hmmm. When I put it like that it doesn't sound so bad, does it?
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McCrea, 19 Nov 2010 @ 3:53pm

Re: Re: Huh?
Just yesterday I explained to my family that purple and blue are the same color.
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Anonymous Coward, 19 Nov 2010 @ 4:07pm

Re: I dunno..
This is my reaction as well. They have very similar styles in my opinion, and I wouldn't be surprised if people assumed they were related or put out by the same company.
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Anonymous Coward, 19 Nov 2010 @ 4:16pm

I drank one of each and now I cannot tell the difference between the two. The confusion starts with consumption. I think Joosed knows their target audience will be confused.
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Anonymous Coward, 19 Nov 2010 @ 4:25pm

Re: Re: "I have to admit, that I'm at a loss."
WTF? Grammar and intelligence have nothing to do with each other. Intelligence is something you are born with, you gain grammar skills through education. Not agreeing with darryl here, just saying.
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Anonymous Coward, 19 Nov 2010 @ 4:27pm

Re: Re: I dunno..
So, you're not really right about any of that.

The applicable "trademark" claim here would be a trade dress infringement claim, which can cover "general design 'style'".

Also, it doesn't matter if the style has been around for a long time or not. The word "shell" has been around a long time, but it's still a valid trademark for gasoline because people associate it with a single source.

Similarly, if people associate this particular design style with a single drink provider, they might have valid trade dress rights.

Of course, if lots of drink providers use this similar design, their rights may be weak (or maybe even nonexistant if nobody associates it with a single provider).
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Anonymous Coward, 19 Nov 2010 @ 4:30pm

Re: Re: Um, yes, yes it does...
I guess this is just one of those cases where you have to agree to disagree, because we're looking at the same photos, and I can't imagine anyone saying they are *very* different colors, graphics and fonts.
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Anonymous Coward, 19 Nov 2010 @ 4:34pm

Re: In a hurry
"a small company can't do the same when the large established company borrows from their styling?"

A small company can do that very thing. Of course, if you're talking about a *really* small company, they might not be able to afford lawyers, but smallish companies get settlements out of big behemoths all the time based on IP laws.
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Anonymous Coward, 19 Nov 2010 @ 6:15pm

Re: they may be right...
>Well, they both have dragons... :-/

Well then shouldn't Drexel University sue them both because they have Dragons as a mascot?
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Anonymous Coward, 19 Nov 2010 @ 7:34pm

This is one of those lawsuits that demonstrate clearly the lengths some people will go to try and stop the competition.

Is just ridiculous but they throw everything on the wall to see what sticks. Hopefully nothing in this case as it is clear that there is no infringement here.

Still who knows, in some courts this may fly.
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techflaws.org (profile), 20 Nov 2010 @ 3:02am

Re: Re: I dunno..
And yet the company put their own name on it. Guess what, if you don't get that you ARE a moron, hurry or not.
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Freak, 20 Nov 2010 @ 4:02am

Re: Re: Re: "I have to admit, that I'm at a loss."
Even if I take your idea of it:
If you pay attention through class, and have enough intelligence, then you know how to properly make your sentences, and why it is important.

So we are left to assume that either D is unintelligent or dropped out of school before they began teaching grammar. Which would probably, but not in all cases, mean he is unintelligent anyways.
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Anonymous Coward, 20 Nov 2010 @ 6:49am

I think the main problem here is that Joose's market ARE morons, the only question is if they're in a hurry or not...
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Anonymous Coward, 20 Nov 2010 @ 7:45am

BUT!! If I was a Joose drinker I would look at the Tilt can thinking that Joose had released a new drink. There is also the stock person who will think they are the same brand (Joose) and put them next to each other, thus creating unfair competition. Also how many consumers will pick up the blue can thinking 'cool Joose is also blue'. It's a gray area but it could be litigated because of the 'looks like' or 'sounds like' defense. You can't design a package that looks like another package and pass it off as original.
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bugmenot (profile), 20 Nov 2010 @ 8:40am

copyright and other corporate lawsuits
These stupid lawsuits costs the consumer millions of dollars. The company doesn't pay for the legal fees, you do! Your can of beer is some number of pennies or nickles more because of lawyers and screwed up tort law.
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Transbot9, 20 Nov 2010 @ 10:40am

Re: Re: Re: Re: "I have to admit, that I'm at a loss."
So where would you rank the abuse of the prepositional phrase?
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Transbot9, 20 Nov 2010 @ 10:55am

As an Expert Witness...
They do both utilize a Tribal/Gothic style with a color pallet of white, black, and a single cool color.

However, Tilt's design not only has a stronger "gothic" influence, it is also reminicent of a coat of arms. Joose has a tribal dragon motif holding a sign. There is also a sizable difference in color between cyan and violet. So while there are stylistic similarities, the actual design is completly different.

It is similar in style from various energy drinks.
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Anonymous Coward, 20 Nov 2010 @ 12:26pm

Re: Re: Re: Re: "I have to admit, that I'm at a loss."
So we are left to assume that either D is unintelligent or dropped out of school before they began teaching grammar.

Maybe he just doesn't care.
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Anonymous Coward, 20 Nov 2010 @ 12:27pm

Re:
Or if they are drunk or not.
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MikeLinPA (profile), 20 Nov 2010 @ 5:28pm

Re: I dunno..
I agree. The cans are of a similar theme, but if you compared them feature by feature, I don't think the claims hold up. (I am going to say this as best as I can, but I don't think my terminology is correct. Cut me some slack here. Also, I am only judging by the picture in the article.)

The font is different, the dragon is different, the color is different, the layout is different, and yet, they both raise the same impressions from me. They both evoke mental pictures of knights, fighting, and dragons. I see these cans as cousins. I can understand why United Brands is upset, but I do not think their claim is valid. It is kind of like comparing the cartons of different brands of eggnog. They are all similar, but not identical.

I believe Anheuser-Busch did copy them, (in the dragon, knight, slaying theme,) but did it well enough to legally succeed.
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MikeLinPA (profile), 20 Nov 2010 @ 5:52pm

Why are your responses all personal attacks?
Darryl,

One thing I see from you a lot is that your posts are personal attacks on the author and other posters. "...and indication of your intelligence..." "...we've come to expect little more from you..." "...then you can just be happy in ignorance..."

Why don't you stay focused on the subject matter and leave the personal insults out of it? I don't agree with everything he says, but I take it for what it is, an opportunity to discuss the subject with others.

I love to debate things, but if I was in a social setting discussing things with a group of people and you carried on like that, I, and probably most everyone else, would get up and walk away from you. You have become that guy that everyone says, "I hate that guy!" about.

If you hate Mike so much, why do you read this forum? Are you his arch-nemesis? Seriously!
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MikeLinPA (profile), 20 Nov 2010 @ 5:54pm

Re: put it that way...
No, when you put it that way, it doesn't sound so bad at all!

Thanks, I got a chuckle out of it.
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Anonymous Coward, 21 Nov 2010 @ 12:07pm

Re:
As a side note, I would have thought that Telegraph Media Group and DC Comics
Oooooohh! Yeah! That's EXACTLY the same as the Telegraph "T". Wow... Perhaps we should write to them... get a 3-way bun-fight going. That'd be fun.... 'coz I bet the Telegraph's had that "T" a lot longer than "Joose" has been going... so if A-B are infringing on them then they must de-facto be infrigning on the telegraph too... right?
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Anonymous Coward, 21 Nov 2010 @ 1:06pm

Re: Re:
and before anyone jumps in... That was sarcasm.
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ntlgnce, 21 Nov 2010 @ 10:59pm

Re: Um, yes, yes it does...
Dude just because they look similar dont mean they could be from the same company. If that were true everything in a 12 oz can should be made by the same company. These two cans have absoultly NOTHING in common as far as trademark or copywrite PERIOD! Oh wait there is a dragon looking object on them, perhaps they should have sued how to train your dragon. Just a company trying to get a market for their product, and SlashDot helped. I think the company thats sueing (and failing) has to pay the others legal fees. That would put a stop to the moronic lawsuits.
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Anonymous Coward, 2 Dec 2010 @ 6:02am

I think it's pretty obvious that A-B purposely designed their can to position their product. If you are looking for that type of drink and you see that can you will be drawn to it. This is done all the time. I doubt Joose has any real legal recourse. They are different enough, but just barely.
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Anonymous Coward, 2 Dec 2010 @ 6:06am

Re: I dunno..
I agree.
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DS, 2 Dec 2010 @ 9:54am

I'd think that they were two variations of the same line of drinks...

I can't imagine how it would look to a moron in a hurry, as these drinks are specifically marketed to morons in a hurry, and as such, not something I'm interested in.
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