In April, news broke that two iconic alcohol brands were joining forces to create a remarkable new beer: Jim Beam Budweiser Copper Lager. Fruit of the joint labor is now available for consumption:

The unique combination doesn’t appear destined to fall flat, as in the early days since launch, it seems to be attracting even self-professed “craft beer snobs,” which is probably the point for Bud.

When iconic brands come together in a co-branding arrangement, it’s interesting to note visual manifestations of the joint trademark use guidelines, a peek into who’s steering the Clydesdales.

Not surprisingly, the reigns of the Clydesdales appear most closely held by Budweiser, as the Copper Lager is beer, not whiskey, and BUDWEISER is the largest wording on the packaging.

That said, the Jim Beam brand name and logo does adorn the six pack carton’s front face with top line prominence, suggesting the brand power it brings to the party – liquid version of Intel Inside?

Figuratively though, not literally, as the Copper Lager isn’t a boilermaker beer cocktail, instead the Jim Beam name and logo indicates aging of the lager on genuine Jim Beam bourbon barrel staves.

One of the things the packaging does well, from a trademark perspective, is keeping the visual identities of the brands separate and distinct, as they appear together in this joint branding effort.

It’s really not a good idea, from a trademark perspective, to mix and blend the combined brands into a single new visual identity, as doing so raises questions of ownership and how to untangle.

So, the packaging does a nice job of keeping each sides trademark elements physically separable while communicating why Budweiser invited Jim Beam to team up for this Copper Lager party.

The trademark filings tell stories too. The only filings currently on the USPTO database that contain the terms Copper and Lager in a mark are owned by Budweiser parent, Anheuser-Busch.

So, Anheuser-Busch views the Copper Lager name to be part of the Budweiser Copper Lager and Budweiser Reserve Copper Lager trademarks, but it disclaims exclusive rights in Copper Lager.

What we don’t know (yet) from the disclaimers, is whether Copper Lager is descriptive (capable of being owned as a trademark element), or generic (you know, meaning zero trademark rights).

If Copper Lager is not a category of beer (i.e., generic and incapable of trademark status), and instead descriptive, since this isn’t Anheuser-Busch’s first such rodeo: acquired distinctiveness?

Either way, this joint effort does appear to be Jim Beam’s first rodeo when it comes to beer, as evidenced by the intent-to-use Jim Beam trademark application it filed in April 2018 for beer.

Thankfully these brand owners are sophisticated enough not to combine Jim Beam and Budweiser into a single trademark filing, sadly I’ve seen commingling before, and it isn’t much fun to unwind.

What do you think, is this joint effort a remarkable one? Is it likely to last, stand the test of time?

You might be familiar with the popular mid-90s commercials suggested by the title of this post.  However, the intention of this post is about the use of trademarks on beer to refuse trademark protection for wineries and vice versa, which is an increasing problem for the growing craft alcohol industry.

Recently an Austrailian company, Innvopak Systems Pty Ltd, tried to register WINEBUD in the U.S.  Its description for the mark stated “alcoholic beverages except beers; wines and still wines and sparkling wines; beverages containing wine, namely, sparkling fruit wine and still fruit wine; ready to drink alcoholic beverages except beers.”  While the Trademark Office has been increasingly difficult when it comes to wines and other beer or alcoholic beverages when it comes to approving applications for publication, the WINEBUD application was approved by the Trademark Office, but later opposed by Anheuser-Busch based on its BUD marks for beer.

The U.S. Trademark Office decided in favor of Anheuser-Busch here.  The Trademark Trial and Appeal Board determined that there was a likelihood of confusion because, in short, BUD is a famous mark, the marks are similar, wine and beer are sold in the same places, and consumers are unlikely to exercise care in their purchases based on the price point.  Innvopak had argued that the marks were dissimilar, stating that the WINEBUD mark was a play on vinebud or the bud of a vine and was therefore different in commercial impression than BUD.  It also tried to argue that the applied for goods were sufficiently different from beer.

I’ve often suggested that one of the ways that breweries or wineries could overcome refusals at the Trademark Office based on the relatedness of the goods is to provide survey evidence from consumers showing that the consuming public recognizes that beer comes from breweries and wine comes from wineries and would therefore not be confused by a beer bearing a mark similar to a wine’s trademark or vice versa.  Here, Budweiser commissioned such a study and found some interesting figures:

  • 24% of survey respondents believed that wine sold under the WINEBUD mark would be put out by, affiliated or connected with, or approved or sponsored by Anheuser-Busch. (Put another way 76% of respondents did not)
  • 37% were reminded of Budweiser by Applicant’s WINEBUD mark
  • 45% of respondents associated the name WINEBUD with Anheuser-Busch

Are you surprised by these statistics?  How do you think the court should have ruled on BUD for beer v. WINEBUD for wine?