Earlier this year I posted about a trademark dispute regarding the use of the term “Square Donuts” for square-shaped donuts. The case involved proceedings both in federal court and at the Trademark Trial and Appeal Board (TTAB), between the Square Donuts cafe in Indiana (which claimed decades of prior use and a trademark registration); and the Family Express convenience-store chain (which sold square-shaped donuts called “square donuts,” claiming the term is generic). As we discussed, the case raised the interesting question of whether the term Square Donuts is generic for cafe services that feature square-shaped donuts (which still look delicious by the way, see below).

Perhaps fortunately for the parties involved, but unfortunately for our curious readers, it appears there will never be a decision answering this question, as the case is headed to a settlement and dismissal. A docket entry on August 30, 2018 in the federal court proceeding states “Settlement Reached,” following a settlement conference between the parties.

However, the case has not yet been dismissed, as the parties have not yet finalized the settlement and dismissal documents. After the court recently granted a joint motion for extension of time, the deadline to file dismissal papers is by the end of this month. In the meantime, there do not appear to be any public updates or press releases yet, regarding the nature of the settlement, on the parties’ respective websites (here and here). However, I do note that the Family Express sub page, “Our Brands,” no longer features “Square Donuts” as one of their “our proprietary brands,” as it did at the time of my previous post in May.

Therefore, just a guess, but perhaps the parties have reached a licensing agreement, in which Square Donuts will maintain its registration and claim to trademark rights, and Family Express will have a license to continue using the Square Donuts name for its donuts. Alternatively, perhaps Family Express has agreed to entirely give up calling its donuts “Square Donuts.” Based on the deadline for dismissal at the end of this month, I’m sure there will be more significant news soon, regarding the nature of the settlement and any changes to the parties’ branding and websites. What do you think will happen — any predictions? Stay tuned for updates.

There’s been a major update in the trademark infringement lawsuit brought by the Museum of Modern Art (“MoMA”) against the cafe and art gallery, MoMaCha in New York City.

MoMA’s motion for a preliminary injunction was recently granted by Judge Louis Stanton of the Southern District of New York. As we discussed previously, the infringement allegations by MoMA were compelling, and it appears the court agrees that MoMA is likely to succeed on its claims, based primarily on the similarity of the marks and the relatedness of the parties’ goods/services in the same city (both parties display works of art along with offering cafe services). The court was particularly persuaded by the similarity of the vertical use of “MoMaCha,” as seen on the coffee cup above, with MoMA’s similar vertical use on the museum building signage above. (See Order at p. 18.)

The court’s preliminary injunction bars MoMaCha from continuing to use its name, logo, and the momacha.com domain name, at least while the legal proceedings are pending. As of today, the previous website, www.momacha.com is no longer accessible.

Instead, it appears that MoMaCha has already rebranded to a slightly different name, by changing one letter: MaMaCha, with a new website already available here: www.mamacha.nyc

Unfortunately, that probably won’t be sufficient to satisfy MoMA’s trademark infringement concerns. Indeed, the New York Times reported that MoMA has already sent a letter to “MaMaCha” regarding the new name and demanding that they cease use. The demand letter closes by stating:

Changing the ‘O’ in MOMACHA to an ‘A’ merely indicates your clients’ continued contempt for MoMA’s trademark rights. Your clients’ decision to change to a mark of such an infringing nature will be done at their peril.

As discussed in my last post, in the midst of trademark infringement allegations, extra caution is warranted. Just as one should be cautious with business expansion under an alleged infringing mark to mitigate damages, extra care is also warranted in selecting a new or modified mark (whether voluntarily or by court order) to avoid similar or further infringement claims, as there will be extra scrutiny and potentially over-aggressive enforcement by the opponent in the present dispute.

And as a practical matter, if one has to expend the effort and resources to re-brand, it may be more cost-effective to make a more significant, lower-risk change, rather than pushing boundaries with a minor change that may again be challenged, instigating further litigation expense, and requiring another re-brand. In many cases, simply changing one letter may not sufficient. Based on these developments thus far, I’m sure there will be interesting updates to come, so stay tuned.

It’s fall, and you know what that means: football season! For many, this means a return to the couch each weekend to spectate America’s most-watched sport. But the popularity of doing so appears to be in decline. This shift isn’t only affecting the NFL, but also college football as well, as ticket sales continue to plummet. Increasingly among my own family and friends, it seems as if everyone is more interested in playing their fantasy leagues than watching reality unfold before them. Which is why, one would think, that leagues and other football organizations would want to promote discussion about football, rather than hinder it.

Credit: Geek.com

But football organizations are cracking down on, rather than encouraging, use of familiar football names and phrases. Some have questioned, for example, the NFL’s bully-like tactics in aggressively protecting the “Superbowl” name. The annual “big game” is so well-known and such a major event that it’s almost impossible not to use its actual name. Yet, the NFL persists, enforcing more than just its famous name, drawing the ire of commentators each year.

Such tactics appear to have inspired a recent filing by the Heisman Trophy Trust against “HeismanWatch.com,” for trademark and copyright infringement. The Heisman Trophy Trust, the complaint says, is the owner of a slew of federal trademark and service mark registrations related to the Heisman Trophy, “one of the most distinguished, prestigious, and recognized awards in all of sports, and perhaps the most famous of all individual awards in football.” The award is given to the most outstanding collegiate football player, usually a quarterback or running back, each year. You might recognize the trophy by its distinctive “stiff-arm” maneuver captured in bronze:

Credit: The Ringer

Defendant HeismanWatch.com is a website that offers information, analysis, and podcasts about the Heisman trophy award. It is known for its “one-of-a-kind regression model that processes simulated Heisman votes,” to predict in advance who will win the Heisman each year. It reportedly correctly predicted the most recent winner, Baker Mayfield.

The Heisman Trophy Trust, apparently, does not appreciate HeismanWatch.com’s analysis and attention. It alleges that the website is deliberately attempting to free ride on the fame and notoriety of the Heisman Trophy marks, and it says that consumers are likely to believe there is a connection between the website and the actual trophy organization. Of course, the fact that HeismanWatch.com exists at all belies any such connection; the Trophy selection is secretive, but the website helps fans read the field and guess who will win next.

Time will tell whether the Heisman Trophy Trust can prevail against a news reporting and commentary organization like HeismanWatch.com, but it’s not unprecedented. The Academy Awards sued “OscarWatch.com” over a decade ago, prompting the website to change its name to “Awards Daily.” One cannot help but think that HeismanWatch.com has an incredibly strong nominative use defense, though. Under nominative use doctrine, another person can use the trademark of another if:

  1. the thing identified by the trademark (here, a trophy) cannot be readily identified any other way;
  2. the mark is used only as much as is necessary for that identification; and
  3. the use does not suggest sponsorship or endorsement.

The nominative use defense protects free speech and against the need to use “absurd turns of phrase” to avoid liability.

Credit: Wikipedia

It’s difficult to imagine a viable substitute to the name “Heisman,” given the trophy’s actual name–and namesake. What alternatives are there to HeismanWatch.com that do not include the surname? One commentator  offered an idea:

BestOffensivePlayerWithAGreatPRCampaignOnAVerySuccessfulTeamWatch.com.

Of course, this is absurd. And generic alternatives would fail to adequately describe what the website does (e.g., OutstandingCollegiateFootballPlayerWatch.com). One also doesn’t have to look much farther than a simple Google search to find that the media regularly uses “Heisman Watch” as a phrase to discuss anticipation about the next awardee. Even ESPN has a section called “Heisman Watch.” This kind of ubiquity shows the obvious necessity of using the surname. The common use of the phrase also suggests there is a very low likelihood that collegiate football fans are confusing the website–or any other reporting source–with the actual trophy organization. These are hallmarks of fair use.

But setting aside the legal defenses, one has to wonder if organizations such as the Heisman Trophy Trust, NCAA, and NFL ought to relax a little, and encourage the kind of use presented by sites like HeismanWatch.com. These fan centers generate excitement about, and interest in, football. That’s something football desperately needs more of lately.

Procter & Gamble (P&G) has filed federal trademark applications to register several well-known (at least among millennials) acronyms used in text messages, including LOL (laughing out load); NBD (no big deal); WTF (what the f***); and FML (f*** my life). The applications identify cleaning products, including liquid soap, dish detergents, surface cleaners, and air fresheners. P&G’s products include brands such as Febreze air freshener, Dawn dish detergent, and Mr. Clean surface cleaner, so perhaps the applied-for marks would be used in association with those existing products. But that’s just a guess, as the applications were filed with an intent-to-use basis, meaning no specimens of use are provided yet.

Earlier this month, the USPTO issued initial Office Action refusals for all four applications, primarily involving minor clarification issues related to the identifications of the cleaning products. However, one of the applications, for FML, received a likelihood-of-confusion refusal, citing previous “FML” registrations, so we’ll see how that pans out. Additionally, two of the applications, LOL and NBD, received requests for information regarding the meaning of the acronyms. (Perhaps the Examining Attorney is not a text-savvy millennial?) Otherwise, it appears that the majority of these four applications will probably be approved for publication eventually, pending resolution of the clarifications and requests for information.

Nevertheless, even if the marks register, the decision to seek registration for these ubiquitous acronyms might seem questionable from a branding perspective, for a couple reasons. First, these acronyms are so commonly used in a variety of contexts, and have such a well-known informational meaning, that it may be difficult for the marks to become strongly recognized by consumers as distinctive source indicators, pointing to P&G and their cleaning products. Second, it is difficult to discern any logical or beneficial association between the well-known meaning of the acronyms and cleaning products. In particular, two of the acronyms have a relatively negative or vulgar meaning (WTF and FML), so it is questionable why the company would want such meanings associated with their products. Perhaps some tenuous play on the acronyms being “dirty” words that would be cleaned up by P&G’s products? Then again, I’m more a legal than marketing type, so perhaps there is a more creative strategy that I’m not thinking of — and again, it’s hard to guess how the marks will be used at the intent-to-use stage.

What do you think about P&G’s decisions to file these trademark applications for their cleaning products, from either a trademark or branding perspective?

Another update on my long-running series of posts following the NHL’s newest hockey team, the Las Vegas Golden Knights, and their embattled trademark applications for VEGAS GOLDEN KNIGHTS that were filed nearly two years ago.

Most recently I posted about a challenge to the trademark applications by the U.S. Army, who opposed registration of the VEGAS GOLDEN KNIGHTS marks in connection with professional ice hockey exhibitions. The Army alleged likelihood of confusion, among other claims, based primarily on the Army’s prior use of a GOLDEN KNIGHTS mark in connection with the Army’s parachute demonstration team.

The hockey team announced last week that they had settled the dispute by executing a co-existence agreement, in which the Army agreed to withdraw the opposition proceeding and allow the hockey team to register the VEGAS GOLDEN KNIGHTS marks, while the hockey team agreed the Army would continue using the Golden Knights name for its parachute team.

This type of settlement involving a co-existence agreement is quite common in opposition proceedings. It is also not surprising for a couple other reasons. As discussed in my last post, the Army would have had a difficult time establishing the necessary “relatedness” factor for its likelihood-of-confusion claim. Although both parties technically are offering types of “entertainment” services, it would have been difficult to show that professional ice hockey exhibitions and parachute demonstrations are sufficiently related to cause likely confusion.

Furthermore, the financial support for the Army by Bill Foley (the owner of the hockey team) may have been a factor that encouraged an amicable settlement. Foley is a graduate of the U.S. Military Academy at West Point, and is the biggest donor to its athletic program. Due to his $15 million donation, Foley’s name is on West Point’s athletic center.

Now that the Army has withdrawn its opposition, the VEGAS GOLDEN KNIGHTS marks will likely register in the next couple months. This was a difficult road to registration in light of the various Office Actions and other challenges discussed in previous posts. But it was well worth the effort, in light of the high value of the team’s brand, especially due to the team’s quick competitive success and business growth. The Golden Knights made it to the Stanley Cup in their first season, and the team sold more merchandise last year than any other other NHL team.

In Cosmetic Warriors v. Pinkette Clothing, the U.S. Court of Appeals for the Ninth Circuit filed an opinion a couple weeks ago, reconfirming that the equitable defense of laches (unreasonable and prejudicial delay in bringing a lawsuit) applies in trademark cancellation actions, even though the U.S. Supreme Court has recently curtailed that defense in copyright and patent cases, and even if such an action is brought within the five-year window for bringing certain types of cancellation claims under the Lanham Act, 15 U.S.C. § 1064.

In this case, Cosmetic Warriors, makers of LUSH brand cosmetics, filed a lawsuit against a fashion company, Pinkette Clothing, that markets LUSH-branded clothing, claiming trademark infringement and seeking cancellation of its trademark registration. But the Ninth Circuit affirmed that Cosmetic Warriors waited too long (nearly five years) to bring its case after it “should have known about its claims.” According to well-established precedent, because the Lanham Act contains no statute of limitations, courts apply a presumption in favor of laches if the plaintiff’s delay is longer than the most analogous state statute of limitations. The Ninth Circuit concluded that California’s analogous four-year statute of limitations for trademark infringement actions applied. Therefore, because Cosmetic Warriors’ delay was beyond four years, the court held a “strong presumption in favor of laches” applied.

Cosmetic Warriors argued that laches could not bar its claims for cancellation, based on a five-year period for cancellation actions specified in 15 U.S.C. § 1064, and based on recent U.S. Supreme Court precedent limiting the defense of laches in copyright and patent infringement actions, Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014) (Copyright Act), and SCA Hygiene Products v. First Quality Baby Products, LLC, 137 S. Ct. 954 (2017) (Patent Act).

The Ninth Circuit rejected Cosmetic Warriors’ arguments based on the Supreme Court precedent from copyright and patent cases, stating, “the principle at work in those cases—a concern over laches overriding a statute of limitations—does not apply here, where the Lanham Act has no statute of limitations and expressly makes laches a defense to cancellation,” see 15 U.S.C. § 1069. Regarding the five-year deadline of 15 U.S.C. § 1064, the court held “[t]here is no question that [15 U.S.C. § 1064] is not a statute of limitations in the usual sense of barring an action entirely once a defined period expires”; rather, that statute “merely limits the grounds on which cancellation may be sought. A petition brought within five years of registration may assert any ground …. By contrast, a petition brought five years after registration (against an incontestable mark) may only assert one of several enumerated grounds.”

This opinion by the Ninth Circuit accords with similar precedent from other federal courts and follows the position of the leading trademark treatise, McCarthy on Trademarks §§ 20:74, 76. It is another reminder to trademark owners and practitioners of the importance of monitoring for infringing uses, and acting quickly to initiate enforcement actions. As in this case, and according to the maxim often quoted by courts, “[t]hose who sleep on their rights, lose them.”

The Museum of Modern Art in New York City, commonly known as “MoMA,” has sued a cafe and art gallery, MoMaCha, also located in New York City. A couple months ago, MoMA filed a complaint in federal court against MoMaCha, asserting claims of trademark infringement, trademark dilution, and unfair competition. A few days after filing the complaint, MoMA also filed a motion for a preliminary injunction. The case is The Museum of Modern Art v. MoMaCha IP LLC et al., No. 18-cv-03364-LLS (S.D.N.Y.)

MoMaCha’s cafe and art gallery offers matcha green tea along with displays of modern and contemporary art. Similarly, MoMA is a museum that displays works of art, and also offers cafe services, in the same area of New York City. The complaint asserts that the parties’ marks are “extremely similar” because they both share the “MOMA” letters, they are both displayed in black-and-white text, and have similar capitalization, in that the “o” is lowercase and the second “M” is uppercase. Shown below are the parties’ stylized/design marks.In response to MoMA’s motion for preliminary injunction, MoMaCha argued that its name is not similar in look or meaning to MoMA’s name; rather, it is a combination of the words “mo” and “matcha” tea, creatively suggesting “more tea.” Furthermore, after the filing of the lawsuit, MoMaCha asserted that it would reduce any possibility of confusion by changing the style of its name to be all capital letters, “MOMACHA,” and by adding a disclaimer to its doors, menus, and website stating, “We have no affiliation with the Museum of Modern Art or any Museum.” (Their current website already shows these changes.) Additionally, MoMaCha argues that MoMA’s mark is weak and therefore entitled to only narrow protection, because it is simply “four letters written in black and white” which are nearly identical to “the commonly used Franklin Gothic font.”

MoMaCha’s arguments, and its voluntary re-design and disclaimer, are creative. But courts have held that disclaimers are not necessarily sufficient to avoid a likelihood of confusion–and sometimes disclaimers can even add to confusion. MoMA might have a difficult time winning a preliminary injunction, based on the high standards that are applicable. Nevertheless, the allegations of the complaint are compelling, based on the similarity of the marks and the relatedness of the parties’ goods/services that are offered in the same city.

How do you think this one will turn out? The briefing on MoMA’s preliminary injunction motion was completed last week. The court denied MoMA’s request for an oral argument, so a decision could be issued at any time, perhaps within the next month or two. Stay tuned for updates.

 

Last week, the U.S. Senate Judiciary Committee held its oversight hearing regarding the U.S. Patent and Trademark Office (USPTO). New USPTO Director Andrei Iancu testified (see his written statement here), for the first time in his new official capacity. It was an interesting hearing–a video recording of the hearing is available here (starting at minute 16).

Director Andrei Iancu, U.S. Patent and Trademark Office

There was critical commentary at the hearing regarding post-grant proceedings at the Patent Trial and Appeal Board (PTAB) under the America Invents Act (AIA), which some argue results too frequently in invalidation of patents, and thereby creates an imbalanced system that does not sufficiently protect patent owners. Senator Coons stated: “In the past decade, there have been a variety of actions … which have had the cumulative effect of significantly weakening patent rights…. One cause is the impact of the new post-grant proceedings at the USPTO before the Patent Trial and Appeal Board …. [T]he current review system is systematically biased against patent owners based on statistics from its first five years.” Senator Coons also mentioned new legislation he had introduced, the STRONGER Patent Acts, which he describes as “aligning PTAB standards to district court standards, better accounting for the fact that issued patents have already gone through a significant examination by a governmental agency.”

Although much of the hearing focused on patents, there was also some discussion of trademarks, with some interesting facts and statistics about the Trademark Office. Last year, about 600,000 trademark applications were filed, an increase of about 12%. Historically, average annual increases in trademark applications are between 6-8%. But the rate of growth is predicted to significantly increase in the future. As of this month, filings have increased 15% since last year. And over the next eight years, annual growth is expected to average 10%. According to Director Iancu, the biggest driver of the increase has been a rise in filings from China, which currently represent 10% of new filings. By 2023, filings from China are expected to represent a third of all filings.

This heavy growth in trademark applications has required significant hiring increases at the Trademark Office, with 232 new Examining Attorneys hired in the past five years, resulting in a total of about 580 Examining Attorneys currently. If the expected growth trends continue over the next five years, Director Iancu anticipates over 300 new hires will be required, growing the number of Examining Attorneys to over 900.

Finally, Director Iancu noted that the Trademark Office met or exceeded all trademark pendency and quality targets last year. Most trademark applications are pending for less than the targeted goal of 12 months, from filing through registration (or other final action or abandonment), with the average being about 9.5 months. The Trademark Office is also meeting its target of issuing a first action on pending applications between 2.5 – 3.5 months after filing, with the average being 2.7 months. More interesting statistics and budgetary data are available here.

It is reassuring to hear the Trademark Office is exceeding its pendency targets (particularly in light of the staggering number of new applications last year–600,000–among 580 examiners). Sometimes it feels like things take longer than they should during prosecution, but in light of this heavy volume, one can develop a greater appreciation for how quickly things are able to move.

What did you think of this oversight hearing on either the topics of patents or trademarks? Any thoughts?

Last year I posted about the trademark infringement complaint by PayPal against Pandora, based on Pandora’s rebranded “P” logo that was introduced in October 2016.  See a comparison below of PayPal’s blue “PP” design mark (left) with Pandora’s blue “P” design mark (right).

Last November, the parties reached a written settlement agreement and stipulated to dismissal of the lawsuit.  There was some media coverage of the settlement, but no details of the settlement were discussed in the media nor in any comments from the parties. A spokesperson for PayPal commented only that “we have resolved this matter amicably.” Thus it appears the terms of the settlement were confidential.

Despite such confidentiality, it has seemed, at least for the past few months, that Pandora was on the winning side of the dispute, as it continued using its blue “P” logo without any changes. Nevertheless, since my post last year, I’ve kept an eye on the logo, as it’s relatively common for settlement agreements in trademark disputes to have extended “phase-out” periods, in which a party is given some time period (such as three months) to phase-out an infringing mark and switch to a rebranded mark.

Last week (roughly three months since the date of settlement), I noticed the Pandora logo on my iPhone app had suddenly changed, see below.

 

After some (very brief) searching, I could not find any announcement or mention of the new logo on Pandora’s website or blog, nor on Pandora’s Twitter feed. Nor have I found any other significant media or online discussion of the new logo, yet. This is a bit surprising in light of the extensive marketing and announcements surrounding the previous rebrand.

I believe the logo change occurred about a week ago, based on when my iPhone app updated, but I can’t be sure. Perhaps this is just a temporary or seasonal logo change for other reasons, but I can’t think of a reason why. Nor does it appear to be limited to the iPhone app–the new logo also appears in the Google Play store, on Amazon, on Pandora’s official Twitter account, and its YouTube channel.

Just a wild guess, but perhaps the written settlement agreement required Pandora to change its logo within three months, and also required both parties to remain silent and refrain from any announcements of the new logo? And just another guess, if that’s the case, perhaps Pandora requested confidentiality, and silence regarding the rebrand, to avoid any suggestion that PayPal’s claims were meritorious (i.e., that Pandora’s logo infringed or diluted PayPal’s logo), or that Pandora was on the losing end of the settlement.

What do you think? As I only searched briefly, let me know, have you found any other discussion or media coverage yet of the new logo? Also, what do you think of the new logo from a branding perspective? Not sure I like the contrasting color combinations, but I could get used to it.

Stone Brewing Co., an independent craft brewery based in California, has filed a trademark infringement complaint against MillerCoors LLC and Molson Coors Brewing Co. (collectively “MillerCoors”). The complaint is based on the recent rebranding of the MillerCoors “Keystone” beer. The rebranded packaging separates “Keystone” into two words, with the smaller word “KEY” on a separate line, above the larger word “STONE.” See the photograph below of the rebranded can (Stone Brewing’s co-founder Greg Koch is in the background, looking displeased).

See also the external packaging of the 30-packs, which further emphasize the word “STONE” on the cans:

Stone Brewing owns an incontestable federal trademark registration for STONE (typeset) for “beers and ales” (Reg. No. 2168093).  When MillerCoors rebranded last year, it appears it may have known about Stone Brewing’s registered rights in the STONE mark. MillerCoors had already filed an application to register “STONES” for beer back in 2007, but was refused registration by the Trademark Office, based on likelihood of confusion with Stone Brewing’s STONE registration. After that refusal, MillerCoors abandoned its STONES application.

Nevertheless, when MillerCoors announced its rebranded packaging for Keystone last year, it emphasized that the rebranded can “plays up the ‘Stone’ nickname” for the beer, and further noted that with this rebranding effort, “Keystone Light is grabbing 2017 by the ‘Stones.”

Stone Brewing’s complaint is aggressive and persuasive, but it also includes some playful and humorous language, along with frequent criticism of MillerCoors, including digs at the quality of its beer (or lack thereof), and its decline in recent years as one of the “Beers Americans No Longer Drink.”  Below are a few of my favorite lines (note that “Gargoyle” is a nickname/emblematic self-reference to Stone Brewing)

  • “Since 1996, the incontestable STONE® mark has represented a promise to beer lovers that each STONE® beer, brewed under the Gargoyle’s watchful eye, is devoted to craft and quality. Like all Gargoyles, it is slow to anger and seeks a respectful, live-and-let-live relationship with peers and colleagues – even those purveying beers akin to watered-down mineral spirits. But Stone and the Gargoyle cannot abide MillerCoors’s efforts to mislead beer drinkers and sully (or steal) what STONE® stands for.”
  • “The Gargoyle does not countenance such misdirection of consumers; nor does it support those who would disavow their own Colorado mountain heritage to misappropriate another’s ancestry. Stone accordingly brings this action to help usher Keystone back to the Rockies. Should Keystone not willingly return, Stone intends to seek expedited discovery in aid of a preliminary injunction”

Stone Brewing’s co-founder Greg Koch recently posted a video regarding the dispute, and MillerCoors issued the following public response:

  • “This lawsuit is a clever publicity stunt with a multi-camera, tightly-scripted video featuring Stone’s founder Greg Koch. Since Keystone’s debut in 1989, prior to the founding of Stone Brewing in 1996, our consumers have commonly used ‘Stone’ to refer to the Keystone brand, and we will let the facts speak for themselves in the legal process”

What do you think about this dispute? In my view, it’s more than a publicity stunt. The MillerCoors response about how some consumers may refer to “Stone” for Keystone beer is less relevant than the marks actually used in commerce by MillerCoors. Based on the rebranded packaging’s emphasis of “STONE,” and Stone Brewing’s incontestable registration for STONE for beer, this appears to be a relatively strong complaint. MillerCoors may be rolling a stone uphill on this one. But we’ll have to wait to see its answer and any defenses. Stay tuned for updates.