Moosehead Lager Makers At It Again: Suing Moose Whiz Root Beer For Trademark Infringement
from the the-moose-is-loose dept
Earlier this year, Moosehead Brewery made the wonderful decision to get into a trademark dispute with the makers of a different beer, called Müs Knuckle, I imagine because trademark lawyers now know both that I'm paying attention to these cases and that I have the sense of humor of a high school sophomore. Moosehead essentially asserted that it owned the trademark rights to anything remotely close to "moose", including made up words that are homonyms but which have delightfully vulgar connotations. Other than the issue of the word "moose", none of the trade dress in question had anything remotely to do with one another.
Which is slightly different in another trademark suit that Moosehead Brewery has initiated. In the case of Moosehead Brewery v. Moose Wizz Root Beer, the labels are somewhat similar in color and logo, though there is certainly differentiation within them as well. The real issue here, instead, is that one of these is an alcoholic drink while the other is just a soda.
In its claim, Moosehead states: "Moose Wizz root beer products are so similar to Moosehead's beer sold under the Moosehead Registered Marks as to create a likelihood of confusion." The Canadian company is seeking damages, including the pulling of all Moose Wizz out of the market and the profits that Adirondack has made on the soda.
Adirondack owner John Carr says no one would confuse Moosehead and Moose Wizz. He points out that one is a beer and the other is a soda.
Which brings us all the way back to a point I've been making about trademarks in the alcohol industry for several years now: the USPTO and its Canadian counterpart, CIPO, need to start differentiating between types of beverages. Given the explosion in craft brewing, craft wines, craft spirits, and even craft soda, it simply can't be enough any longer to get a trademark on "beverages" or something of that sort. It must start being more specific, or we're going to start to see the trademark dispute carnage currently plaguing the beer industry spilling over into not just other alcohol industries, which has already started, but into other beverage markets as well.
Not to mention the question as to whether or not CIPO should actually be approving trademark registration in Canada that revolve around the word "moose" at all. It certainly feels like a heritage word being carved out of the language of business. Carr certainly doesn't seem to think that makes any sense.
"I mean, we're in the Adirondacks, guys," he told syracuse.com in a story about the case published in November 2015. "Do you mean we have to take 'moose' out of our vocabulary? I don't like to be bullied,'' he said. "I say to them, 'You don't own the moose.' "
Unfortunately, a jury at the trial disagreed and found in favor of Moosehead, awarding the brewer a meager eight thousand dollars.
The jury awarded Moosehead Breweries of New Brunswick $8,800 in damages. Federal court judge Norman Mordue will decide at a later date whether to prohibit Moose Wizz from continuing to use the name and the depiction of a moose's head on its label, as Moosehead has demanded.
Rather than focus on the similarity of the labels as I had expected, Moosehead apparently instead directly took on whether or not root beer and beer-beer could be conflated by the public. Adirondack argued as I have in the past, stating that the difference between the beverages makes them distinct in the marketplace. Moosehead, however, rather smartly pointed out that root beer has become the new alcohol flavor du jour, and that this suddenly meant that non-alcoholic root beers could be confused as alcoholic.
Moosehead's lawyers contended the recent surge by beer brewers moving into the hard root beer and alcoholic soda marketplace has blurred those lines.
"Really, that was the central issue in this case," said Moosehead lead attorney Mike Garvin, of the Vorys law firm in Cleveland.
He cited products like Not Your Father's Root Beer, an alcoholic soda made by a brewery in Illinois. (The trend has reached Central New York, where, for example, Matt Brewing of Utica now makes hard sodas in a line called Jed's)."Really, Moosehead might not have brought this case ten years ago," Garvin said. "The point we tried to make is that the beverage world has changed. The lines between breweries making beer and other beverages is less clear than it was."
We're now playing the degrees of separation game, but with beverages. Because what Moosehead is really suggesting isn't so much that Moose Wizz will be conflated with Moosehead directly, but that Moose Wizz will be conflated with other root beer-flavored alcoholic drinks, which then puts it in the category for which a trademark case would make logical sense. I can understand why the jury bought this argument, but I still find it odd that a beer and a soda are considered to be in the same marketplace.
And, more importantly, if we're going to start playing this degrees of separation game in the alcohol arena, then the trademark dispute glut that has plagued the industry these past few years might be a mere warm-up act.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: beer, moose whiz, moosehead, rootbeer, trademark
Companies: moose wizz, moosehead brewery
Reader Comments
Subscribe: RSS
View by: Time | Thread
"Wizz".... doesn't that mean colloquially "piss"?
I see myself out :-)
[ link to this | view in chronology ]
Re:
So, I'm pretty sure Moosehead can sue them again.
[ link to this | view in chronology ]
Re:
No, that's "whiz", which despite the headline is not the name of the product.
[ link to this | view in chronology ]
Moose Drool
[ link to this | view in chronology ]
Tumultuous Tumulus
The chance that the beer and soda will ever meet is infinitely small as the one is (very locally) distributed in Belgium and the other mainly in southern France, a distance of about 800 km at least.
After a couple of years an agreement was found. Tumulus beer still exists as such but may not use certain colours on its label and may not use 'numbers' as a name (the original claim was about a beer called Tumulus 800). So both parties pretended they won the case.
It did cost the local brewery about 20,000 Euro (22,000 USD) though, peanuts for Coca Cola but a huge loss for a local brewery.
[ link to this | view in chronology ]
Frankly,
[ link to this | view in chronology ]
Differentiation
He might also have pointed out that one is a head and the other is...not.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I suppose I'd better get started on the moose's Right To Be Forgotten claim.
[ link to this | view in chronology ]
Moose & Monster, two words no longer allowed to be used
[ link to this | view in chronology ]
Re: Moose & Monster, two words no longer allowed to be used
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
I wanted a MooseHead beer and all I got was this piss.
[ link to this | view in chronology ]
As planned
Which is exactly what the lawyers want.
[ link to this | view in chronology ]
just a minute
[ link to this | view in chronology ]
Big game hunters rejoice
[ link to this | view in chronology ]
Moosehead has announced it will be offering an alcoholic root beer flavored beverage -- new product to be named Moose Wizz
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
How Many Beers?!?
They need a sliding scale of how many Moosehead Beers the average person has to drink before they confuse root beer with beer.
Of course, they would need one scale for the US of A, and a smaller (metric?) scale for Canadian Beers, which are notoriously more alcoholic in nature; at least north of the border...
[ link to this | view in chronology ]