Moosehead Lager Makers At It Again: Suing Moose Whiz Root Beer For Trademark Infringement

from the the-moose-is-loose dept

Earlier this year, Moosehead Brewery made the wonderful decision to get into a trademark dispute with the makers of a different beer, called Müs Knuckle, I imagine because trademark lawyers now know both that I'm paying attention to these cases and that I have the sense of humor of a high school sophomore. Moosehead essentially asserted that it owned the trademark rights to anything remotely close to "moose", including made up words that are homonyms but which have delightfully vulgar connotations. Other than the issue of the word "moose", none of the trade dress in question had anything remotely to do with one another.

Which is slightly different in another trademark suit that Moosehead Brewery has initiated. In the case of Moosehead Brewery v. Moose Wizz Root Beer, the labels are somewhat similar in color and logo, though there is certainly differentiation within them as well. The real issue here, instead, is that one of these is an alcoholic drink while the other is just a soda.

In its claim, Moosehead states: "Moose Wizz root beer products are so similar to Moosehead's beer sold under the Moosehead Registered Marks as to create a likelihood of confusion." The Canadian company is seeking damages, including the pulling of all Moose Wizz out of the market and the profits that Adirondack has made on the soda.

Adirondack owner John Carr says no one would confuse Moosehead and Moose Wizz. He points out that one is a beer and the other is a soda.

Which brings us all the way back to a point I've been making about trademarks in the alcohol industry for several years now: the USPTO and its Canadian counterpart, CIPO, need to start differentiating between types of beverages. Given the explosion in craft brewing, craft wines, craft spirits, and even craft soda, it simply can't be enough any longer to get a trademark on "beverages" or something of that sort. It must start being more specific, or we're going to start to see the trademark dispute carnage currently plaguing the beer industry spilling over into not just other alcohol industries, which has already started, but into other beverage markets as well.

Not to mention the question as to whether or not CIPO should actually be approving trademark registration in Canada that revolve around the word "moose" at all. It certainly feels like a heritage word being carved out of the language of business.  Carr certainly doesn't seem to think that makes any sense.

"I mean, we're in the Adirondacks, guys," he told syracuse.com in a story about the case published in November 2015. "Do you mean we have to take 'moose' out of our vocabulary? I don't like to be bullied,'' he said. "I say to them, 'You don't own the moose.' "

Unfortunately, a jury at the trial disagreed and found in favor of Moosehead, awarding the brewer a meager eight thousand dollars.

The jury awarded Moosehead Breweries of New Brunswick $8,800 in damages. Federal court judge Norman Mordue will decide at a later date whether to prohibit Moose Wizz from continuing to use the name and the depiction of a moose's head on its label, as Moosehead has demanded.

Rather than focus on the similarity of the labels as I had expected, Moosehead apparently instead directly took on whether or not root beer and beer-beer could be conflated by the public. Adirondack argued as I have in the past, stating that the difference between the beverages makes them distinct in the marketplace. Moosehead, however, rather smartly pointed out that root beer has become the new alcohol flavor du jour, and that this suddenly meant that non-alcoholic root beers could be confused as alcoholic.

Moosehead's lawyers contended the recent surge by beer brewers moving into the hard root beer and alcoholic soda marketplace has blurred those lines.

"Really, that was the central issue in this case," said Moosehead lead attorney Mike Garvin, of the Vorys law firm in Cleveland.

He cited products like Not Your Father's Root Beer, an alcoholic soda made by a brewery in Illinois. (The trend has reached Central New York, where, for example, Matt Brewing of Utica now makes hard sodas in a line called Jed's).

"Really, Moosehead might not have brought this case ten years ago," Garvin said. "The point we tried to make is that the beverage world has changed. The lines between breweries making beer and other beverages is less clear than it was."

We're now playing the degrees of separation game, but with beverages. Because what Moosehead is really suggesting isn't so much that Moose Wizz will be conflated with Moosehead directly, but that Moose Wizz will be conflated with other root beer-flavored alcoholic drinks, which then puts it in the category for which a trademark case would make logical sense. I can understand why the jury bought this argument, but I still find it odd that a beer and a soda are considered to be in the same marketplace.

And, more importantly, if we're going to start playing this degrees of separation game in the alcohol arena, then the trademark dispute glut that has plagued the industry these past few years might be a mere warm-up act.


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  • identicon
    oliver, 30 Aug 2016 @ 1:12am

    "Moose Wizz"... really?
    "Wizz".... doesn't that mean colloquially "piss"?

    I see myself out :-)

    reply to this | link to this | view in chronology ]

    • identicon
      Michael, 30 Aug 2016 @ 3:52am

      Re:

      I'm pretty sure Wizz is a trademarked name for cheese. Cheese is sometimes eaten with wine. Wine is an alcoholic beverage.

      So, I'm pretty sure Moosehead can sue them again.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Aug 2016 @ 9:11am

      Re:

      > "Wizz".... doesn't that mean colloquially "piss"?

      No, that's "whiz", which despite the headline is not the name of the product.

      reply to this | link to this | view in chronology ]

  • identicon
    Bill Poser, 30 Aug 2016 @ 2:05am

    Moose Drool

    I wonder what they think of "Moose Drool", a beer made in Montana.

    reply to this | link to this | view in chronology ]

  • icon
    Felix Atagong (profile), 30 Aug 2016 @ 2:07am

    Tumultuous Tumulus

    Same happened here in Belgium when Tumulus beer was sued by Coca-Cola because they have a fruit soda called Tumult.

    The chance that the beer and soda will ever meet is infinitely small as the one is (very locally) distributed in Belgium and the other mainly in southern France, a distance of about 800 km at least.

    After a couple of years an agreement was found. Tumulus beer still exists as such but may not use certain colours on its label and may not use 'numbers' as a name (the original claim was about a beer called Tumulus 800). So both parties pretended they won the case.

    It did cost the local brewery about 20,000 Euro (22,000 USD) though, peanuts for Coca Cola but a huge loss for a local brewery.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 30 Aug 2016 @ 2:09am

    Frankly,

    I think if this sort of thing stands then Evo Morales should have standing to sue "Coca-Cola" out of using "Coca" since it is diluting the coca leaf farmers' business. I can well imagine that someone would respond to "give me some coca" with an actual beverage rather than a package of leaves.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2016 @ 2:10am

    Differentiation

    "He points out that one is a beer and the other is a soda."

    He might also have pointed out that one is a head and the other is...not.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2016 @ 2:12am

    "You see, it's not Moosehead's fault at all! People are just really fucking dumb enough to not tell apart beer and root beer. The jury who voted in favor of us proves it!"

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 30 Aug 2016 @ 2:16am

    I am ashamed that my fellow Canadians would stoop so low

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 30 Aug 2016 @ 11:56am

      Re:

      Oh dear. Then you won't like that I've arranged for a moose to take a selfie. And that I'm going to upload it to Kim Dotcom's new file sharing service with a caption insulting a Terrebonne Parish Sheriff.

      I suppose I'd better get started on the moose's Right To Be Forgotten claim.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2016 @ 4:09am

    Moose & Monster, two words no longer allowed to be used

    So I guess Moose ranks up there with Monster as 2 words no longer to be spoken in public without permission from the trademark owners.

    reply to this | link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 30 Aug 2016 @ 6:53am

      Re: Moose & Monster, two words no longer allowed to be used

      ...awww! There goes my plan to market my awesome new concoction, Moose Monster Smoothies!

      reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 30 Aug 2016 @ 4:14am

    Any restaurant planning to serve chocolate mousse had better have an IP attorney on retainer...

    reply to this | link to this | view in chronology ]

  • identicon
    Moron in a Hurry, 30 Aug 2016 @ 4:38am

    I'm so confused.
    I wanted a MooseHead beer and all I got was this piss.

    reply to this | link to this | view in chronology ]

  • identicon
    DH, 30 Aug 2016 @ 4:41am

    As planned

    we're going to start to see the trademark dispute carnage currently plaguing the beer industry spilling over into not just other alcohol industries, which has already started, but into other beverage markets as well.

    Which is exactly what the lawyers want.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2016 @ 9:20am

    just a minute

    Is moosehead saying their beer is really Moose Whiz disguised as beer? Now I can see why they are up in arms...

    reply to this | link to this | view in chronology ]

  • icon
    Tom Mink (profile), 30 Aug 2016 @ 10:47am

    Big game hunters rejoice

    Moosehead Brewery will inevitably challenge the use of the pheromone-laden liquid that hunters sprinkle to attract prey. Moose piss is quite expensive, but as Moosehead will show in filings demonstrating potential confusion in the marketplace, their cheap brew is substantially similar!

    reply to this | link to this | view in chronology ]

  • identicon
    Stosh, 30 Aug 2016 @ 11:08am

    BREAKING NEWS ---
    Moosehead has announced it will be offering an alcoholic root beer flavored beverage -- new product to be named Moose Wizz

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2016 @ 12:02pm

    Yes because when I hear the word head, I instantly think of piss.

    reply to this | link to this | view in chronology ]

  • icon
    DocRobot (profile), 31 Aug 2016 @ 11:19am

    How Many Beers?!?

    "Adirondack owner John Carr says no one would confuse Moosehead and Moose Wizz. He points out that one is a beer and the other is a soda."

    They need a sliding scale of how many Moosehead Beers the average person has to drink before they confuse root beer with beer.

    Of course, they would need one scale for the US of A, and a smaller (metric?) scale for Canadian Beers, which are notoriously more alcoholic in nature; at least north of the border...

    reply to this | link to this | view in chronology ]


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