When claims of trademark infringement make the news, it is often because a billion dollar corporation is suing old man Donaldson’s tavern for trademark infringement (Although, McDonaldson’s might have been a bad choice…). You’ve got your Ikeas, your Googles, Chick-fil-As, and your NFLs of course (not the National Forensics League, they’re cool). David can fight back and win, but David never throws the first punch.
Well, as the saying goes, every once in a blue moon, there’s an exception to the rule. And our exception to the David-Starting-Fights-Rule is Mr. Jeff Moses. Jeff owns the MBF Company, a beer, wine, and spirits distribution company. He also owns a number of his own brands, including his Graffiti® brand of wine. And if you’re thinking that the little R in a circle may become important, well, Watson, I think we’d make a great team. (That’s a Sherlock Holmes reference; I can use that now, right?). Moses even found California graffiti artist to create labels for his wine, like the one below:
After Moses used (and registered) his GRAFFITI mark, the Blue Moon brand released a specialty edition line called the “Graffiti Collection.” According, to Blue Moon, the line’s premise rests on the fact that:
We never know what will come out of the creative minds of our brewmasters. These bigger, bolder ales are inspired by the unpredictable stories of our brewers.
Yes, crazy, creative, unpredictable names like “Pine in the Neck,” “Tounge-Thai-ed,” “Chimp,” and “Grape Scott.” Those zany stories have to be true. No way the marketing department was simply charged with the task of “finding ‘funny’ puns, like those craft brews are doing.”
But back to the lead. Blue Moon filed a trademark application for the mark GRAFFITI COLLECTION. Moses filed a Letter of Protest, which stated that Moses believe there would be a likelihood of confusion between his earlier trademark GRAFFITI in connection with “wine” and Blue Moon’s use of “GRAFFITI COLLECTION with “beer.” The Trademark Office granted the letter, and the Examining Attorney issued a refusal to register Blue Moon’s applied-for mark. Blue Moon chose to abandon the application, but continues to use the mark to promote its beer. Moses doesn’t like that and, according to one local news source, is considering taking legal action.
It’s an interesting article, as the news reporter also spoke with a communications manager for MillerCoors, who informed the reporter that “[a]ny time a name is under consideration, we decide if we need a trademark or not. In this case, we saw no grounds for confusion. Beer and wine are totally separate categories.” Of course, if the company had “chosen” that didn’t need a trademark registration, they they wouldn’t have filed at all. What he really means is that the company decided it is comfortable with taking the risk that the other factors (use of the Blue Moon brand, differences between the goods, and other factors) are all sufficient to avoid a likelihood of confusion in the real word (or that they don’t believe Moses will enforce his rights).
Moses appears to be fighting a bigger fight though. One of his primary problems appears to be Blue Moon’s (and really, all of the big beer companies’) attempts to co-opt the craft beer ethos:
They’re not a craft beer. They don’t own the name they’re using on the label. And it’s an insult to graffiti artists that they’re using graffiti and street art to represent a mass-produced beer product.
I’ll admit that Blue Moon does a better job than the beers that include the namesakes of the big breweries. It didn’t take long for Budweiser American Ale to get the axe. I would imagine that Miller Fortune isn’t far behind. Craft brew continues to grow, notwithstanding that there are new breweries opening every month. As Bloomberg reported in January:
Sales of craft beers grew 16 percent in volume over the past year versus a 1.7 percent decline for the biggest U.S. beer brands, according to researcher Symphony IRI Group. Sales of Bud Light were off by 1.3 percent and Miller Lite slid 4.4 percent.
There are a number of explanations, with taste likely at the top of the list, and “localization” not far behind. But that doesn’t explain why Big Beer has failed to capitalize on the growing trend of craft beers. If I can borrow one of our guest blogger’s branding hats for a moment, though, I think I have a good explanation: crudely put, people have natural bull**** detectors. In some ways, it’s the basis of the entire jury system. When consumers see the “Budweiser Craft Beer,” they see Budweiser, they don’t see Craft Beer. That’s why you’ll never see the Coors name displayed prominently on a Blue Moon bottle, (or the other “craft” beers owned by Big Beer). No matter how hard they try, Goliaths can’t fool anybody by trying to squeeze into David’s clothing. Let’s wait and see if Moses can be successful in donning the clothes and role of Goliath against Blue Moon…