LMFAO, The Band, Sends Cease And Desist Over LMFAO, The Beer

from the smh dept

It’s been quite clear over the past two years or so that the alcohol industry, and specifically the craft beer industry, has a massive trademark problem. The simultaneous and wholly related explosions of both the sheer number of craft brewers in existence and the unprecedented interest in craft brews has resulted in more threatened legal action than anyone could have anticipated. At the heart of the issue is the cultural practice of giving specific brews funky, funny, derivative and pop-culture-based names. Because of the number of brews being developed, these names often are met with concern by a secondary party who holds a trademark on something similar. Most often, these disputes come from other breweries.

But not always. Sometimes, indeed, they come from the strangest of places. Take the case of Pigeon Hill Brewing Co.’s latest offering, the LMFAO Stout. You already know where this is headed, don’t you?

The latest case in a string of trademark disputes involving West Michigan craft beverage producers didn’t come from a company in the industry, but rather from a pop music group.

The band, which bills itself as an “entertainment phenomenon,” alleges that Muskegon-based Pigeon Hill Brewing Co.’s LMFAO Stout infringes on its trademarked name, according to a cease-and-desist letter sent on Aug. 11. The letter caught executives at Pigeon Hill off guard as the brewery had researched potential trademark violations in the craft beverage space prior to labeling its beer, said Michael Brower, a co-founder at the brewery.

Yes, LMFAO, the band, sent a cease and desist to the brewery over LMFAO, the beer, claiming that consumers might somehow think that the band was now in the brewing business. You see, in today’s permission culture, that the brewery actually took the step of searching to see if anyone had a trademark on LMFAO for alcoholic drinks doesn’t really matter. Because LMFAO, the band, saw an opportunity for relevancy and jumped on it.

“We have a very famous mark,” Thilo Agthe, the attorney representing LMFAO, told MiBiz. “We have to be very careful in policing how that trademark is used and by whom. It’s possible that customers that purchase (LMFAO Stout) might associate that with the band.”

Agthe declined to comment on whether the group had specific evidence of customer confusion related to Pigeon Hill’s beer, citing the attorney-client privilege.

I can’t honestly say that I’ve ever heard of attorney-client privilege being used as a shield for providing evidence of a trademark dispute in this way. Probably because it makes about as much sense as me putting my dog in front of a computer and shouting at her to make me a pizza. The whole point of a trademark dispute of this kind rests on customer confusion, real or possible. The proper answer to the question of “Why the hell are you bothering with this?” isn’t “Haha I can’t tell you because I’m a lawyer.”

And we’ve seen more than enough of this “We must protect our trademark” excuse used in these types of disputes. A mark owner is bound to police the use of their mark within the industry and within the bounds of trademark law. It is most certainly not bound to police every instance of the words or phrases being used by anyone in any commerce forever and ever amen. Especially when it’s been demonstrated clearly that the use by the brewery, in this case, has literally nothing to do with the band.

Pigeon Hill settled on the name for its LMFAO Stout, which stands for “Let Me Fetch An Oatmeal Stout,” after soliciting input from social media to crowdsource the beer’s name, Brower said.

Yeah, that isn’t what LMFAO stands for and they know it. That said, what LMFAO does stand for has been around long before the pop band decided to utilize it for their name. I would expect any action brought by the band to be dismissed with haste.

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Comments on “LMFAO, The Band, Sends Cease And Desist Over LMFAO, The Beer”

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PaulT (profile) says:

Re: Dumb Dumb Dumb

The attorney is smart enough to know that he’s being paid to protect a trademark at all costs, even if there’s no real danger of confusion . The band’s management was smart enough to trademark it. The dumb here is the system itself, that allows someone to not only trademark a commonly used word (or acronym in this case) that they didn’t invent, but also bully people using that for independent reasons with no real danger to the trademarked business. The attorney cashes his checks based on this stupidity, he’s not necessarily dumb himself.

Anonymous Coward says:

this type of thing has gotten worse and will continue to get worse until there is something positive done. that means someone in Congress tabling a law or whatever the procedure is, to make it a punishable offense when issuing these ‘nuisance’ and ridiculous ‘cease and desist’ orders, where the punishment is the same as the various industries insisted against ordinary members of the public. the reason they happen is because Congress didn’t want to make it hard for their buddies in the various industries to be held accountable when they issued the stop and shut down orders. now we’ve got such a monumental fuck up, it’s gonna take forever to sort out, which was another reason why the industries wanted it how it is. it has to change. before long there is going to be the most ridiculous order put out that if not followed will lead to a humongous court case where a hell of a lot of companies lose out, not just ordinary folks! change things before it gets to that stage instead of sitting back, thumbs up asses, brains in neytral, waiting for thenext check to be delivered!!

Anonymous Coward says:

It should be like patents ,
if theres prior art you cant trademark a word in common
use that you did not invent .
You can call a pop/rock group what you want ,
but you cant sue someone else a shop or company who uses that word .
All court cases over ordinary words should be rejected by the judge before it comes to a court case .
There was a pop group called boston they did not sue anyone else for using that word .
You should not be allowed to trademark a common word/ abbreviation
or a word you did not invent .

monurta@gmail.com says:

Re: Re:

Their trademark doesn’t seem to cover beer, so it’s irrelevant.
You can trademark things, but you specify what the trademark relates to.

The closest they get is musical performances at clubs, bars and restaurants, which might serve alcohol, but from an article on their trademark application, it covers music and entertainment, not beer, so this should already be covered by the nature of trademark applications.

Anonymous Anonymous Coward says:

Moar not more

Probably because it makes about as much sense as me putting my dog in front of a computer and shouting at her to make me a pizza.

How disappointing. It appears you either need a better trained dog or a better programmed computer. I mean really, who wouldn’t expect their dog to fetch a pizza from a digital device? Didn’t you teach your dog to type, or does your favorite pizza joint have a voice controlled website that doesn’t understand bark code?

TKnarr (profile) says:

All it’d take is a judicial rule that the plaintiff has to either present a trademark registration in the industry category the defendant operates in, or identify the specific activities or marketing of the defendant’s product that encroaches on the industry category the plaintiff’s mark is registered in. The PTO has standardized industry categories, so it shouldn’t be that hard to nail down. It just requires judges who’re willing to do their jobs even if it inconveniences the plaintiff.

Then again, a lot of cases could be readily dismissed if Iqbal standards were applied the way it’s been ruled they should apply.

Anonymous Coward says:

Re: LMFAO in use since 2003

According to the dictionary on my desk, the word “target” has been used since the 1300s to reference an object to be aimed at in shooting, throwing, etc. This predates the formation of the store TARGET by several hundred years, which means nothing as to whether it can be used as a registered trademark, and it certainly does not make the trademark “generic”.

A trademark becomes generic when it goes from being the identifier of a specific source of a product or service to refer generically to the whole class of products or services (think Asprin, Rollerblade, Thermos, Frisbee).

LMFAO would likely be considered an “arbitrary mark”, as it is an existing word but it does not describe the goods for which it is registered. As far as being able to register an existing word, how many years a word has existed doesn’t matter one bit.

Regardless, LMFAO’s registration is not broad enough, and the band is not famous enough, to stop the beer mark from becoming registered. The C&D is bad enough, but it would be sad if they tried to file suit.

The Wanderer (profile) says:

To be fair, there is some modicum of merit to the “likelihood of confusion” claims in this and similar cases.

The logic runs roughly as follows:

Bands and other famous entities often enter into endorsement deals for the promotion of unrelated products, which turn on associating the band or entity’s name with the thing being endorsed.

Some such endorsement deals go so far as to name (or rename) the unrelated product being endorsed after the band or other famous entity.

The public is aware of this pattern, and knows that when they see the name of a famous entity on an unrelated product, it tends to mean that that entity has endorsed that product.

Therefore, for an unrelated product to take the same name as that of a famous entity introduces the likelihood of the public being confused into thinking that such an endorsement deal has taken place, and that the famous entity is endorsing the unrelated product, even when the entity in question is not in the same line of business as the unrelated product.

Of course, to allow this line of reasoning to prevail would completely eliminate the principle that a trademark only applies within a given field of business – or, even worse, would eliminate it only for famous trademarks, while those of less-successful brands would still have the lesser reach…

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