Attorneys in general, and trademark attorneys in particular, have a reputation for heavy handedness. The traditional weapon of choice for these legal pugilist has been, and continues to be, ye olde cease and desist letter. A long, unnecessarily wordy letter sprinkled with “without authorization”‘s and “reserves all rights and remedies”‘s and other thinly veiled and not-so-thinly veiled threats of legal action. There are times when the traditional cease and desist letter is acceptable – Nay! – all but necessitated! But attorneys with an eye on their client’s business goals understand that there is no such thing as a one-size-fits-all enforcement communication. Indeed, the trademark tomes are jammed to the brim with tales of trademark owners whose actions have earned them the alleged label of a “trademark bully.”

But Bud Light’s recent dispute with a local Minneapolis brewery was just the opposite. Instead of creating a public relations nightmare, fanning the flames of “Big Beer” versus “Craft Beer,” Bud Light turned a trademark dispute into an advertising boon! The issue involved Bud Light’s newly adopted advertising tagline DILLY DILLY, which appeared in a Bud Light commercial earlier this year. Modist brewery chose to name its new Mosaic Double IPA “DILLY DILLY.” At the moment, the beer is still posted on the Modist Brewing website. The companies reached a friendly agreement and Bud Light even offered Modist two free tickets to the Super Bowl (which, coincidentally, will be in Minneapolis). And then, like a foam cherry on top, Bud Light hired an actor to visit the Modist taproom and “deliver” a cease and desist message from a scroll in medieval tongue. Modist plans to exhaust its current supply and then, if the beer is brewed again, use a different name. Even if the beer comes back as a new name, Modist will still have Ye Olde Scroll, which Modist has hung in its taproom.

In this instance, everyone seems to win. Bud Light received favorable press coverage throughout the country on the issue and put all other breweries on notice of its claimed rights in DILLY DILLY tagline. Modist received some great free publicity, two months ahead of the biggest sports party in the United States. I have to assume there will be more than just a handful of beer drinkers coming for Super Bowl festivities, wanting to go to the Dilly Dilly brewery and get a picture with Ye Olde Scroll.

Scrolls won’t be the next big thing in trademark enforcement. However, this is another example of how creative legal approaches can not only resolve a problem more efficiently, but end up creating other benefits for your business or clients. And with the number of breweries and beers expanding at an exponential rate the last few years, the industry will need to continue to find creative solutions to these problems. It’s great to see even the big players in the industry recognize this need.

  • Dan Kelly

    Tim,
    I’m glad you’re covering this. Two things:
    (1) Does anyone else find it strange that there is video of the message delivery that commences as the King’s Messenger is walking in the door? Methinks there was some pre-meditated cooperation on the part of Bud Light and Modist to make sure this got captured by video in its entirety for one or both parties’ benefit. Perhaps it was a secret camera by someone in cahoots with the King’s Messenger/Bud Light, but I find it somewhat suspicious.
    (2) This is obviously in the mold of the Stranger Things demand a few months ago to the Chicago pop-up bar. Given the publicity that these have generated for both the rights owner and the accused infringer, it seems like rights holders are now inadvertently incentivizing copycats to see if they, too, can grab fifteen minutes of fame, which is the exact opposite of what a rights holder generally wants.
    Don’t get me wrong, I’m all for cultivating civil C&D practices that keep us away from the over-the-top spittle-flecked lawyer letter, but I think the right answer is probably somewhere between these extremes.

    • Tim Sitzmann

      Dan, I agree, it had to have been pre-planned. The theater fan in me would have preferred a truly spontaneous messenger. But then it may not have been recorded, gone viral, and given Bud Light its favorable PR.

      On your second point, I had to delete some sentences from my post along those same lines. I was afraid of revealing the “stick in the mud” side of myself. But now that you’ve opened the door…. The stunt could encourage parties to take risks they might not otherwise take. Now the risk calculus includes the possibility of free publicity.

      The middle ground is the sweet spot: firm, but reasonable enforcement to avoid the need for the occasional “Hey We’re Friendly Sometimes” swing of the pendulum. And you can save the $6,000 on Super Bowl tickets.