Beverage Company Sues Anheuser-Busch Over Totally Different Looking Can Design

from the that's-infringing?!? dept

Scott alerts us to the bizarre lawsuit filed by United Brands, makers of the “Dragon Joose” malt beverage, filed against Anheuser-Busch for its Tilt malt beverage, arguing that the new design of Tilt’s cans represents trademark infringement, copyright infringement and unfair competition among other things. The company put out this statement:

“While we are flattered that Anheuser-Busch recognizes the considerable value of the Joose brand, it is disappointing that they have resorted to stealing our design,” says Michael Michail, CEO and president of United Brands. “Their new Tilt product design intentionally infringes on our Dragon Joose Marks and is thereby benefiting from the brand equity of United Brands and its products.”

Based on that, you’d have to think the two cans look pretty damn similar, right? Well, take a look:

I have to admit, that I’m at a loss. Okay, there’s a (very different) dragon on each can, but the designs are totally different from one another. What, exactly, does United Brands think infringes on their copyright on the original design? I can’t see anything that’s copied. Same with the trademark. I can’t see any likelihood of confusion here. I’ve seen some pretty bizarre trademark and copyright lawsuits, but I’m at a total loss as to what was infringed on here.

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Companies: anheuser-busch, united brands

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Comments on “Beverage Company Sues Anheuser-Busch Over Totally Different Looking Can Design”

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Anonymous Coward says:

I dunno..

If I saw these cans next to each other in a store I would actually be inclined to think that they came from the same company. While they are clearly different they still have a similar style, at least from what I can see from the images. If it has any legal implications I can’t tell, of course. That said, I wouldn’t drink any of them so for me the issue is moot.

Kingster (profile) says:

Re: I dunno..

I’m inclined to agree. They do look similar enough to be part of the same “line”.

Now, my guess is that they wouldn’t be anywhere near each other. The big distributors usually don’t get crowded together, and get plenty of space. Plus, in many cases, the distributor is nearly (if not totally) in charge of their display area.

Marcus Carab (profile) says:

Re: I dunno..

That really doesn’t matter. There is no copyright or trademark on a general design “style”, like the concept of frilly calligraphic dragons, or blackletter-style text, which has been around for a few centuries. If there were, both these companies would be infringing on countless Daytona beach t-shirt booths.

Anonymous Coward says:

Re: Re: I dunno..

So, you’re not really right about any of that.

The applicable “trademark” claim here would be a trade dress infringement claim, which can cover “general design ‘style'”.

Also, it doesn’t matter if the style has been around for a long time or not. The word “shell” has been around a long time, but it’s still a valid trademark for gasoline because people associate it with a single source.

Similarly, if people associate this particular design style with a single drink provider, they might have valid trade dress rights.

Of course, if lots of drink providers use this similar design, their rights may be weak (or maybe even nonexistant if nobody associates it with a single provider).

lux (profile) says:

Re: I dunno..

Any moron in a hurry can tell these cans are similar. Both have stylized dragons in a tribal pattern, contain basically the same contents, and have similar lettering. If I didn’t read this article, I would believe they were pushed by the same company.

AB could have chosen an infinite number of animals or designs, yet they chose a dragon and a tribal design, which is exactly what Joose chose. But of course, having literally an infinite number of possibilities, Mike finds zero commonality between the two cans – why, cause they aren’t COMPLETELY identical? No shit, but nothing can satisfy Mike’s ego to not be wrong.

MikeLinPA (profile) says:

Re: I dunno..

I agree. The cans are of a similar theme, but if you compared them feature by feature, I don’t think the claims hold up. (I am going to say this as best as I can, but I don’t think my terminology is correct. Cut me some slack here. Also, I am only judging by the picture in the article.)

The font is different, the dragon is different, the color is different, the layout is different, and yet, they both raise the same impressions from me. They both evoke mental pictures of knights, fighting, and dragons. I see these cans as cousins. I can understand why United Brands is upset, but I do not think their claim is valid. It is kind of like comparing the cartons of different brands of eggnog. They are all similar, but not identical.

I believe Anheuser-Busch did copy them, (in the dragon, knight, slaying theme,) but did it well enough to legally succeed.

Colin (profile) says:

It’s hard to tell from the photos and I’m at work so I can’t just run to the local shop to see what they look like. I’m going out on a limb here, but they both appear to be cylindrical metal cans with approximately the same dimensions…in the disfunctional world is the US legal system (at least to us outsiders), perhaps that is enough similarity?????

Andrew (profile) says:

It’s a similar style, I guess, but I hate to think how much of the work produced by the design industry would also be infringing if this lawsuit succeeds.

Design follows trends: it’s inspired by previous work and influences following work. It’s not created in vacuo, and is much better, in terms of both aesthetics and usability, as a result. (None of this is news to anyone who reads Techdirt of course.)

As a side note, I would have thought that Telegraph Media Group and DC Comics (Batman) would have much stronger claims against Anheuser-Busch…

Anonymous Coward says:

Re: Re:

As a side note, I would have thought that Telegraph Media Group and DC Comics

Oooooohh! Yeah! That’s EXACTLY the same as the Telegraph “T”. Wow… Perhaps we should write to them… get a 3-way bun-fight going. That’d be fun…. ‘coz I bet the Telegraph’s had that “T” a lot longer than “Joose” has been going… so if A-B are infringing on them then they must de-facto be infrigning on the telegraph too… right?

DogBreath says:

I'm incensed, outraged and flabbergasted!

How dare Anheuser-Busch use colors, fonts, dragons, and a can! Think of how many colorblind, illiterate, cylindrical shape susceptible and non-functioning taste bud customers will be confused by this dastardly deed perpetrated by a maniacal megalomaniac conglomerate?

What I imagine to be some the first statements in the opening argument by United Brands lawyers.

MrWilson says:

If just viewing the designs of one can from each company beside each other, you might think they came from the same line (though if you compare all canned drinks, there’s quite a bit out there with the grungy tribal tattoo design style that’s become popular with various sub-cultures…), but when viewed as one drink line against the other (for instance, in the pictures Berenerd linked to), it’s clear they’re two distinct lines.

The text is vertical on the Dragon Joose line and the text is horizontal on the Tilt line. The Dragon Joose cans all have a black background with a highlight color for decoration and the Tilt cans have the highlight color as the background color and black only for the background of the main product name area.

It just looks like a result of both companies marketing to the same sub-cultures.

Jeff (profile) says:

Um, yes, yes it does...

So, here’s what kills me about you guys at TD… you have these great ideas, like pointing out that things that are just similar are not always TM infringement, etc., but then you fall back into the bad habit of using yellow-journalism style hyperbole to try and make a point that you don’t need to make.

In this case, of course those two cans look alike… and I’m not just talking about that they both have a dragon on them. The tramp stamp style line work around the product name, the fonts, the damn size… Just like someone else on here said, if I saw those on the shelf, I’d think they were from the same company.

That said, does that mean it’s a TM or Copyright infringement? Maybe, maybe not… but that’s for the court to decide.

I know, you don’t get to be funny if you don’t blow it out of proportion, but damn… ease up….

Mike Masnick (profile) says:

Re: Um, yes, yes it does...

In this case, of course those two cans look alike… and I’m not just talking about that they both have a dragon on them. The tramp stamp style line work around the product name, the fonts, the damn size…

If those two cans look alike, you can argue that Coke and Pepsi infringe on each other too. After all, both used to use similar gothic logos. And — oh my! — the cans are the same size!

I don’t buy it. Similar style, but with *very* different colors, graphics and fonts, is not infringing.

Jeff (profile) says:

Re: Re: Um, yes, yes it does...

You’re right, I could argue that… But I won’t… Because Coke did it on their own back then, which is why the Pepsi logo and design look nothing like Coke’s anymore.

Again, is that really infringement? Who knows, ask actual consumers. In this case, doubtful because AB can steal market share with ad dollars rather than cheap tricks.

ntlgnce says:

Re: Um, yes, yes it does...

Dude just because they look similar dont mean they could be from the same company. If that were true everything in a 12 oz can should be made by the same company. These two cans have absoultly NOTHING in common as far as trademark or copywrite PERIOD! Oh wait there is a dragon looking object on them, perhaps they should have sued how to train your dragon. Just a company trying to get a market for their product, and SlashDot helped. I think the company thats sueing (and failing) has to pay the others legal fees. That would put a stop to the moronic lawsuits.

OG says:

In a hurry

I have to agree with some of the commenters that, if I saw these cans in the same display case I would think they were part of the same line of products from the same manufacturer. I also agree with some other commenters that it is unlikely that the small company’s product is going to be displayed (in most cases) in the same case as A-B products.
If the plaintiff here had a product that was being sold and now they’ve lost their market b/c A-B is competing, well that really does suck for them, but I doubt they’ll have much recourse. Maybe they just need to lower their prices?
Query, however, if a brand other than Arizona started marketing iced tea in tall cans with South Western, Navajo style graphics I am sure that the Arizona iced tea company would go after them with everything they’ve got and probably win.
(Without opining as to whether or not it should be this way,) why can a large, established brand use IP laws to squash competing start-ups that are trying to hitch a ride on the existing company’s “style” but a small company can’t do the same when the large established company borrows from their styling?

Anonymous Coward says:

Re: In a hurry

“a small company can’t do the same when the large established company borrows from their styling?”

A small company can do that very thing. Of course, if you’re talking about a *really* small company, they might not be able to afford lawyers, but smallish companies get settlements out of big behemoths all the time based on IP laws.

darryl says:

"I have to admit, that I'm at a loss."

Yes, you are Mike, if you cannot easily see how similar those two graphics are, as well as the similarity of the produce, the packaging, size, font, style and so on.

But you see none of that Mike, because you are at a loss..

What do you see ? are you even looking at the same pictures ?

Ofcourse, its a standard IQ test question and indication of your intelligence to be able to see common patterns, and pick similarities, such as like designs.

If you do not have that ability, that is a problem for you, but because you cannot see what is clearly there, does not mean that it is not there at all. Just that you cant comprehend it..

Thats ok, we’ve come to expect little more from you, this is just interesting to guage your level of observation.

Seems there are quite a few people here that can see what you cannot.

Its ok Mike, if you cannot see they are similar, then you can just be happy in ignorance I suppose..

Freak says:

Re: Re: Re: "I have to admit, that I'm at a loss."

Even if I take your idea of it:
If you pay attention through class, and have enough intelligence, then you know how to properly make your sentences, and why it is important.

So we are left to assume that either D is unintelligent or dropped out of school before they began teaching grammar. Which would probably, but not in all cases, mean he is unintelligent anyways.

MikeLinPA (profile) says:

Re: Why are your responses all personal attacks?


One thing I see from you a lot is that your posts are personal attacks on the author and other posters. “…and indication of your intelligence…” “…we’ve come to expect little more from you…” “…then you can just be happy in ignorance…”

Why don’t you stay focused on the subject matter and leave the personal insults out of it? I don’t agree with everything he says, but I take it for what it is, an opportunity to discuss the subject with others.

I love to debate things, but if I was in a social setting discussing things with a group of people and you carried on like that, I, and probably most everyone else, would get up and walk away from you. You have become that guy that everyone says, “I hate that guy!” about.

If you hate Mike so much, why do you read this forum? Are you his arch-nemesis? Seriously!

Will Sizemore (profile) says:

Maybe they should first learn to spell, “juice.”

Does anyone see their kids growing up, going to the grocery store, and getting irate with the manager because they can’t find, “apel joose?” Have these people seriously NOT seen Idiocracy? I hope they all get sick and then get lost on the way to the, “St. God’s Hospi-
l” next door because their smartphone GPS is malfunctioning.

Jake says:

I’m seeing a noticeable lack of imagination on the part of Anheuser-Busch’s design team, but if uninspired follow the leader cash-ins become grounds for copyright and/or trademark lawsuits, every major movie studio and publishing company in the developed world would go bust in a week…

Hmmm. When I put it like that it doesn’t sound so bad, does it?

Anonymous Coward says:

BUT!! If I was a Joose drinker I would look at the Tilt can thinking that Joose had released a new drink. There is also the stock person who will think they are the same brand (Joose) and put them next to each other, thus creating unfair competition. Also how many consumers will pick up the blue can thinking ‘cool Joose is also blue’. It’s a gray area but it could be litigated because of the ‘looks like’ or ‘sounds like’ defense. You can’t design a package that looks like another package and pass it off as original.

Transbot9 (user link) says:

As an Expert Witness...

They do both utilize a Tribal/Gothic style with a color pallet of white, black, and a single cool color.

However, Tilt’s design not only has a stronger “gothic” influence, it is also reminicent of a coat of arms. Joose has a tribal dragon motif holding a sign. There is also a sizable difference in color between cyan and violet. So while there are stylistic similarities, the actual design is completly different.

It is similar in style from various energy drinks.

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