While trademark infringement is the headliner for claims brought under the Lanham Act, the law also precludes false advertising and unfair competition. Most states also have laws addressing deceptive trade practices addressing similar misconduct by advertisers. Recently one consumer sued MillerCools under these laws, claiming he had been deceived into purchasing Fosters beer, thinking the beer was made in Australia.
The plaintiff pointed to the red kangaroo and star constellation prominently displayed on the front of the can. The red kangaroo is closely associated with Australia and you may recognize the star constellation from the Australian flag (below):
The plaintiff also pointed to the history of Fosters beer. It was first brewed in Australia in 1887, and first exported to the U.S. in 1972, in large 25.4 ounce containers “shaped like motor oil cans.” Into the late aughts, however, the Fosters beer sold in the U.S. was brewed stateside at Oil Can Breweries in either Albany, Georgia or Fort Worth, Texas. Yet television commercials maintained similar themes, such as the “Fosters: Australian for Beer Commercials.” Compare this 1996 commercial with this 2011 commercial. If you watched them both, you likely noticed the word “Imported” disappeared from the front of the can between 1996 and 2011.
Notwithstanding the imagery, MillerCoors prevailed on a Motion to Dismiss. The company pointed to the disclaimer on the side of the can, which states that the beer is “Brewed and packed under the supervision of Foster’s Australia Ltd, Melbourne Australia by Oil Can Breweries, Albany GA and Fort Worth TX.” The court found this to be a sufficient disclaimer under the circumstances and, in light of the commercial context, no consumer would be reasonably deceived into thinking the beer was imported from Australia.
The Fosters decision is the latest in a trend of victories for beer companies battling consumers who claim that the beer deceptively suggests that the beer is actually imported from another country. Red Stripe and Sapporo both prevailed in overcoming lawsuits alleging the companies’ advertising deceived consumers into thinking their beer was imported from Jamaica and Japan respectively.
Not all breweries have been as lucky, however. The makers of Kirin and Beck’s both settled lawsuits that resulted in payouts to consumers. And even though Red Stripe prevailed, consumers can perhaps claim a moral victory with the company’s decision to move operations back to Jamaica.