UN Appoints Special Expert To Report On Online Privacy; Surprisingly, US And UK Don't Object

Blu Cigarettes Sues Blu Ale House Over Blu Logo

from the where's-the-e? dept

Fri, Mar 27th 2015 3:50pm — Timothy Geigner

I can't honestly claim to know a whole lot about e-cigarettes. That's because when I was still smoking, I smoked the old fashioned kind of cigarettes. You know, the ones made from tobacco, that cured acne, and that made my breath smell as cool and fabulous as a pub toilet. Plus, everyone was doing it and my lungs weren't going to give themselves cancer, so you know. But, even knowing little about e-cigarettes, I know enough to know that they aren't ale houses located in Riverdale, New Jersey. This is a conclusion that the lawyers over at Lorillard, makers of "blu" e-cigarettes, think is likely to escape the larger population, as they have decided to file a trademark dispute against Blu Alehouse over its name and logo.

The lawsuit filed by Lorillard Technologies Inc. centers on a logo that NJ Ale House LLC is using at its Blu Alehouse in Riverdale, N.J., Law360 reported. According to the news website, the logo features "the word 'blu' surrounded by smoke or flames." The subsidiary of Greensboro-based Lorillard (NYSE: LO) claims that the logo is too much like the branding for blu eCigs.

Let's leave everything else aside for a moment and simply take a look at the two logos to see if they look substantially similar on their own. First is the logo of Blu Alehouse. Note that this logo normally appears alongside the full name of the establishment.

And now the logo for blu Cigarettes.

Neither logo is particularly complicated, but even failing to correct for the simplicity of the designs, the two logos are distinctly different. If both logos didn't incorporate the word "blu" in them, there would be absolutely nothing to argue about here. And, again, that's strictly taking the logos into account with no other context. Because once we use the likelihood of customer confusion and the markets of competition tests, I'm failing to see how this wasn't tossed immediately upon a judge's review. An ale house isn't competing with cigarettes in any way. Add to that that it would be quite difficult for even the most moronic and hurried citizens to mistake the two companies for each other, what with the ale house's logo typically appearing alongside other signage that identifies itself as an ale house.

Strangely, an actual judge reviewing the claim thought differently.

U.S. District Judge Kevin McNulty found that Lorillard — along with another subsidiary, LOEC Inc. — made "plausible claims for trademark infringement and unfair competition," and he ruled that the case could go on, Law360 reported.

How is the claim of unfair competition even possible? The two companies aren't competing with each other at all. The only mention of competition in the court filing by Lorillard is over the fact that sometimes they advertise their cigarettes at drinking establishments.

LTI and LOEC allege that Blu Alehouse bar and restaurant is directed at a similar consumer base as LTI and LOEC's BLU products because BLU products are promoted at bars, restaurants, and lounges.

But that doesn't actually put the companies in competition with one another. That would be like Budweiser claiming that Big Buds Magazine, here to serve all of your marijuana information needs, infringed on Budweiser marks because they occasionally sell beer to high people. Why should that matter at all?

Hopefully as this case moves forward, a more sensible conclusion is reached.

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Filed Under: bars, blu, cigarettes, trademark

27 Comments

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Anonymous Coward, 27 Mar 2015 @ 4:04pm

blu (e cigarettes) is a popular brand, and "vape lounges" are establishments gaining in popularity. Given the state of brand licensing in the modern marketplace, I don't think it's unreasonable to think that blu might branch into lounge/nightclub/alehouse/etc. sphere.

I'm not saying that's the end-all, be-all of this dispute, but it's not some sort of crazy overreach.
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- Anonymous Coward, 27 Mar 2015 @ 6:00pm
  
  Re:
  Aren't Vapehousesthe opium dens of the latest century?
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- nasch (profile), 28 Mar 2015 @ 7:26am
  
  Re:
  I don't think it's unreasonable to think that blu might branch into lounge/nightclub/alehouse/etc. sphere.
  
  Trademarks are granted for a specific set of industries or business types. If Lorillard didn't get a Blu trademark for lounges/nightclubs/bars, they should not be able to complain to the judge that they might want to do so in the future.
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DB (profile), 27 Mar 2015 @ 4:33pm

Even if they expanded into lounges and alehouses, they won't get a general trademark on 'Blu'. It's a widely used word, and many hotel (with lounges) use Blu as part of their name.

Of course they aren't going to sue those business, which long predate their own existence.
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Anonymous Coward, 27 Mar 2015 @ 4:48pm

Motion to dismiss stage
I'm failing to see how this wasn't tossed immediately upon a judge's review.

From Judge McNulty's decision:
This matter comes before the court on the motion of Defendant NJ Ale House, LLC d/b/a Blu Alehouse ("NJ Ale House") to dismiss the complaint . . . .

II. DISCUSSION
A. Standard

Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. . . .
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- nasch (profile), 28 Mar 2015 @ 7:29am
  
  Re: Motion to dismiss stage
  For the purposes of a motion to dismiss, the facts alleged in the complaint are accepted as true
  
  That would seem to be the issue. Apparently a claim can't be dismissed just because the claimant is saying things that are not true. No wonder getting sued in the US is so damn expensive.
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  - Anonymous Coward, 28 Mar 2015 @ 8:40am
    
    Re: Re: Motion to dismiss stage
    Apparently a claim can't be dismissed just because the claimant is saying things that are not true.
    In the U.S., the federal rules do make some attempt at preserving the traditional role of the jury as the finder of fact.
    
    Amendment VII
    In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
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  - Anonymous Coward, 28 Mar 2015 @ 9:15am
    
    Re: Re: Motion to dismiss stage
    No wonder getting sued in the US is so damn expensive.
    Naturally, it is much cheaper to convince a learned judge of supposed facts than it is to convince a jury of twelve ordinary citizens.
    
    The learned judge has received legal training, and in any event is friendly with the governor or a few senators: it follows that he tends to be more inexpensively pursuadable. On the other hand, twelve common citizen may be obstinate —stubborn— like mules. Costs a lot to change mulish mind.
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Rabbit80 (profile), 27 Mar 2015 @ 4:53pm

At first glance, the font was similar - but that's after 2 bottles of red wine :)
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Roman, 27 Mar 2015 @ 5:33pm

Blu
Blu e-cigs is not some poor independent "little guy" company - they are owned by the same company that does Newport and Maverick cigarettes - likely among the top-three.
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Anonymous Coward, 27 Mar 2015 @ 5:36pm

Careful
If Sony gets involved with Blu ray they are both screwed.
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- Anonymous Coward, 28 Mar 2015 @ 7:59pm
  
  Re: Careful
  Funny meme, friend, but I'd have to side with the vape makers on this one. The font weight and style are a tad too similar. I hope they were nice enough to ask them to send a cease and desist.
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  - nasch (profile), 28 Mar 2015 @ 8:56pm
    
    Re: Re: Careful
    The font weight and style are a tad too similar.
    
    It doesn't really matter unless Lorillard's trademark applies for the business of bars, nightclubs, etc. I'm not certain this is the right one but all the ones I could find that look even close are just for cigarettes.
    
    http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4801:e1a399.2.35
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Anonymous Coward, 27 Mar 2015 @ 6:02pm

I see this more and more when companies file seemily petty lawsuits when they are in the midst of major changes, such as blu is. I don't have the market savy to understand the nature of it but I think it's important to widen the context surrounding blu.

http://m.fool.com/investing/general/2015/03/23/giant-tobacco-merger-finds-itself-at-the-mercy-of
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Anonymous Coward, 27 Mar 2015 @ 8:01pm

So this is why BLU always ends up losing in every Team Fortress 2 video. Too many lawsuits.
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Mark (profile), 27 Mar 2015 @ 9:16pm

Lets not forget Blu Products, purveyor of cell phones and Android tablets

http://www.bluproducts.com/

Lawsuit tag! You're it!
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Reality bites, 28 Mar 2015 @ 4:53am

Can't expect logic from a moron judge
They are nothing more than a stupid DA rising to the top of the cesspool.
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Anonymous Coward, 28 Mar 2015 @ 9:16am

They do NOT put the word Alehouse after that specific logo. It's on the shirts of every employee stand alone. Everyone has noticed that it looks like the Blu logo. That place has a lot going on underneath the surface, I've spoken with multiple people that work/used to work there. I'm not surprised they're stealing logos, it's not the only crime being committed in that place.
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- nasch (profile), 28 Mar 2015 @ 5:42pm
  
  Re:
  Everyone has noticed that it looks like the Blu logo.
  
  Huh? The only things they have in common are the word Blu and the color blue. Literally everything else about them is different, including the typeface.
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Ninja (profile), 28 Mar 2015 @ 12:49pm

Wait till they are sued by blu-ray makers, Blue's Clues producers, Blue Men Group... Heck, it's a blue pandemonium!
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Sheogorath (profile), 28 Mar 2015 @ 4:35pm

Guess I must be a 'moron in a hurry'; last time I was drinking trains, now I'm vaping ale houses!
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DB (profile), 28 Mar 2015 @ 4:39pm

It's sounds as if the Anonymous Coward earlier today has a grudge.

That was an allegation of criminal activity, albeit completely unspecified criminal activity.

Given that trademark conflicts are not criminal, I tend to disbelieve everything that posters writes. But it still appears to be slander.
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Lorraine, 28 Mar 2015 @ 5:05pm

Anonymous: I used to work there. This link was sent to me this afternoon. I wouldn't call them criminals. I never saw any criminal activity going on in that place while I worked there. It was always and still is packed! The town needed a hang out like that. This lawsuit won't hold up. Did you get fired or something?
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Anonymous Coward, 29 Mar 2015 @ 9:05am

where's ootb then?
So when is out_of_the_blu(e) going to assert his intellectual property rights then?
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Steevo (profile), 29 Mar 2015 @ 9:34am

The problem with the legal system
This is the problem with the legal system. According to the players, judge, attorneys, etc., everyone pretty much deserves their day in court. Even for ridiculous complaints from vexatious litigants. The court would not interfere with their rights to go to court.

That said, a single small bar being sued by a huge tobacco company over trademark infringement is pretty implausible. But the judge may just be waiting for the defendant to bring a reasonable Motion for Summary Judgment, which might cost them $100,000 to bring. Which they may not be able to afford to bring. And they'd need some discovery first.

This is why huge corporations have such an advantage. Lorrilard has good revenues, they can bring nuisance suits against anyone they want. There is nothing a little guy can do about it.

The court won't dismiss it on their own, the defendant would have to bring them a reason. The judge might be eager for that to happen. But it'll never happen on it's own, our legal system is based on advocacy, which sometimes means whoever has the best lawyers wins, no matter how ridiculous the argument.

The loser pays system in Great Britain would take the wind out of some of these, but no one is advocating that here. Even me. Sadly.

If you want to read a fascinating case look up Tabberone,
http://www.tabberone.com/Trademarks/trademarks.shtml
A husband and wife who got sued for trademark infringement and defended it themselves, and won against a huge corporation, maybe Disney or Warner Bros. It's quite a read.
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Socrates, 29 Mar 2015 @ 8:24pm

Involuntary addiction syndicate?
Perhaps the aggressor consider themselves to be in the involuntary addiction "business"? Nicotine is addictive. E-cigarettes only function is to sustain the addiction by supplying the addictive substance. All other functions (to the extent that they exists) is secondary.

Beer contains ethanol. The primary functions of beer is not addiction but social and as beverage. Though some people develop addiction to ethanol, mainly as a result of prolonged excessive consumption of ethanol.

Perhaps the nicotine syndicate sees this a turf war? Perhaps they want to herd more people into stronger addictions ... one that they control?
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Violynne (profile), 30 Mar 2015 @ 3:20am

I'm glad this case is going to trial.

I'm sick and tired of trying to vape my beer while drinking my smoke juice.

This will fix everything, since I'm so stupid.

This post brought to you by Sarc Asm, the finest quality beer flavor vaping juice. Pick some up today!
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