Trademark

by Timothy Geigner


Filed Under:
beer, trademark, wine

Companies:
e & b beer, e & j gallo



E And J Gallo Sends Cease And Desist Trademark Notice To E And B Beer

from the bullies-be-bullying dept

It's been a refreshing bit of time since we've last written about a silly trademark dispute in the beer and alcohol space, so perhaps you, the dear Techdirt reader, had thought that the complete fuster-cluck that is trademark and alcohol had somehow begun to calm the hell down. Sadly, not so much, it seems. To serve as one reminder, E & J Gallo, maker of wines and spirits and a company that has previously demonstrated its inability to tell different kinds of drinks apart, has sent a cease and desist notice to E & B Beer, a company that makes, you know, beer.

The case pits well known wine and liquor company E and J Gallo against E and B Beer. The owner of Eand B, Santo Landa, says he sees no similarity and feels like this is a case of a big company trying to stomp out the little guy.E and B Beer has been around since the late 1800s in Detroit. It's already been trademarked once before.

Since buying the brand, Landa applied for his own trademark but he's run into a roadblock. An attorney for E and J sent a legal notice saying similarities may cause confusion for customers.

So, let's start with the names of each company. It should be immediately clear that any concern about confusion between the two names is fairly silly. The only similarity between them is the "E and" at the start of each name. Everything else about the names is distinct, from the second initial used to the inclusion of another name (Gallo) and the other mark's description of what the product is (beer). Even if we set aside my personal quest to have the Trademark Office realize that beer, wine, and spirits are all distinct industries and should be treated as such for the purposes of trademark, there's little likelihood of confusion purely from the names of each business. Add to that the logos for each company are beyond distinct and it seems clear that confusion ain't going to be a thing.



None of each company's various iterations of their logos appear to be any more similar than the above. Other than the start of the name and both logos having red in them, there's just nothing there. Certainly not enough to rise to the level of trademark infringement. Which is probably why Landa himself can't figure out what the issue is and sees this as nothing more than a bullying attempt by a larger company.

"I'd like to get an explanation as to what they think is confusion," he says.

The most troubling thing for Landa? He insists he can win a legal fight, but not without big money - money he simply doesn't have.

Now, E and J Gallo apparently offered Landa the rights to keep his name, but only if he limited his sales to 2 states. If you think that's reasonable, you aren't paying attention, because there's nothing remotely like trademark infringement here and there is no reason for Landa to give up his right to sell anywhere at all, never mind limiting himself to 4% of the country's states.


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  • icon
    Anonymous Anonymous Coward (profile), 27 Jul 2017 @ 5:35pm

    Qualities of growth, or tasting

    Is there any chance that E&J's attorneys wrote this up after attending a product sampling, or is it axiomatic that once one becomes big, they also become bullies?

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

  • identicon
    Pixelation, 27 Jul 2017 @ 6:50pm

    And fun was had by all!

    I think they should have a drinking contest to determine the outcome.

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

    • icon
      Anonymous Anonymous Coward (profile), 27 Jul 2017 @ 7:09pm

      Re: And fun was had by all!

      Absolutely, make them drink their own products (balanced for alcohol by volume) and the police should have a sobriety checkpoint outside to determine the winner (high score), along with a rank of cabs to take people home...or not.

      They might also balance the results by who brings the most/least lawyers, but don't tell them this in advance.

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

  • icon
    orbitalinsertion (profile), 27 Jul 2017 @ 8:13pm

    As they also own the Batles and Jaymes mark, maybe E & J Gallo think they have the rights to anything something and something in any sort of drinky space.

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

  • identicon
    Anonymous Coward, 27 Jul 2017 @ 11:24pm

    So why doesn't a techdirt lawyer/reader offer to do a free defense of the beer company and stick one up the wine company's arse?

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

  • icon
    OldMugwump (profile), 28 Jul 2017 @ 4:58am

    Why "big money"?

    The most troubling thing for Landa? He insists he can win a legal fight, but not without big money - money he simply doesn't have.

    I know there a lot of lawyers here at Techdirt.

    Can somebody please explain why fighting and winning this requires "big money"?

    IANAL (as I've amply demonstrated in the past). But surely there is some process for adjudicating this dispute before the PTO.

    Why does that process, in a simple case like this, require "big money"? I find it hard to imagine it would require more than a few hours for a competent trademark attorney to draft a document disputing Gallo's claim.

    So - what? $2000? Is that "big money" for a brewery?

    Somebody please explain.

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

    • identicon
      Anonymous Coward, 28 Jul 2017 @ 7:08am

      Re: Why "big money"?

      The initial reply isn't that expensive, but that initial reply just starts the battle. After that is discovery, and responses, and sur-responses, and appeals, and motions, and counter-motions, ad naseum. Each of those takes some time for your lawyer to write and file, and lawyers tend to expect to get paid to manage the paperwork and writing the filings. 5 minutes of work here and 5 minutes there adds up to a billable hour here and a billable hour there (or half hours) The company with the deeper pockets can afford to keep filing trivial and nonsense paperwork that you have to reply to until you can't afford to fight anymore.

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

      • icon
        OldMugwump (profile), 28 Jul 2017 @ 7:44am

        Re: Re: Why "big money"?

        Still, it's an intrinsically simple case.

        How much does that add up to, realistically? A couple hours a month?

        That doesn't strike me as "big money" for a business of 10 or 20 people. And at some point either there will be a resolution or Gallo will give up (esp. if they're getting bad publicity, which they are).

        Am I not getting something? Why does this guy think he can't fight this?

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

        • identicon
          Anonymous Coward, 28 Jul 2017 @ 7:51am

          Re: Re: Re: Why "big money"?

          It may be a simple case, but that has nothing to do with how many motions filings etc. that the bullies lawyer can file, and therefore how much cost they can impose on the defendants.

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

          • icon
            OldMugwump (profile), 28 Jul 2017 @ 9:30am

            Re: Re: Re: Re: Why "big money"?

            Do you speak from experience as an attorney or litigant?

            If you're correct, and if the courts don't address the justice of that via assignment of costs, etc., then this is a condemnation of far more than the PTO and trademark law - it's a condemnation of our entire legal system.

            But I don't know if you're correct.

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

  • identicon
    Anonymous Coward, 28 Jul 2017 @ 5:09am

    Rewards...

    I feel that if judges would award the accusers' brand name to the defender if the litigation prooved frivoulous, a lot of these lawsuits would simply not happen...

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

  • icon
    Oblate (profile), 28 Jul 2017 @ 7:59am

    Only 2, I can think of more...

    Now, E and J Gallo apparently offered Landa the rights to keep his name, but only if he limited his sales to 2 states.

    Are those the states of confusion and disbelief?

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

  • identicon
    Anonymous Coward, 28 Jul 2017 @ 8:13am

    "perhaps you ... had thought that the complete fuster-cluck ... had somehow begun to calm the hell down"

    No, but I had a minor hope that you abandoned the area as trivial, besides entirely out of your control. You've railed over trademark disputes, by my count 659 times now, and I doubt anyone outside of Techdirt readers has ever noticed. I suspect that you have an obsession with alcohol because you seem to be highly interested in trivia that relates in any way.

    In any case, what's the point of presenting yet another copy-and-paste-in-names piece? What's your wished for, and practical solutions, no matter how alcohol-fueled?

    (Also, try to improve as a writer: avoid even euphemisms for vulgarisms and hackneyed phrases. Those add nothing unless you're paid by the word...)

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

    • identicon
      Anonymous Coward, 28 Jul 2017 @ 8:17am

      Re: "perhaps you ... had thought that the complete fuster-cluck ... had somehow begun to calm the hell down"

      Best not to give writing advise when you can't even complete short paragraphs without making grammatical errors.

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

  • icon
    McGyver (profile), 28 Jul 2017 @ 10:57am

    It's soooooo confusing!

    Wait now...
    I'm confused...
    Both product are liquids, so they must be the same...
    Right?
    But they both use red in their logos and so does Stolichnaya vodka, so that means they are both vodkas...
    Right?
    And the font on the E&B logo is very similar to the font of J&R's Steakhouse and since both products use ampersands in their logos...
    Both products must be Steak Vodka...
    Right?
    Both names start with an E and the E in E&J refers to the name Ernest, and that is very similar to Ernie, and since I know about Ernie and Bert, the B must stand for Bert...
    So both products are Steak Vodka, made by the rival muppets on Sesame Street... Right?
    Okay... Got it.
    It was very confusing, but I figured it out.
    I'm glad their stupid lawsuit cleared this up for me.
    Okay, Ernie & Bert Gallo... I want my Steak Vodka now.

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

  • identicon
    Anonymous Coward, 28 Jul 2017 @ 12:05pm

    It would help considerably if this and your future articles included images of the actual trademarks being discussed. The article from which you liberally quote suffers from the same failure. Merely FYI, the wine company you are talking about has a very large number of registered and active state, federal, and foreign trademarks.

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

    • identicon
      bob, 28 Jul 2017 @ 6:02pm

      Re:

      Sounds like you work for the wine company.

      It would help considerable if you included links to the trademark images of which you speak.

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

    • icon
      orbitalinsertion (profile), 29 Jul 2017 @ 6:36am

      Re:

      The ones displayed are not good enough? Then perhaps you might get the Porch Sittin' Brothers to cough up which specific marks they mean, if not the general format of X&Y. Because they don't own that format. And it doesn't matter what quantity of marks they own.

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

  • icon
    Coyoty (profile), 28 Jul 2017 @ 9:44pm

    Strike That, Reverse It

    Ernest & Julio Gallo was founded in 1933. E&B's logo declares they've been in business since 1873, and a quick search shows beer cans with the mark predating 1933. If E&J is claiming similarity, then E&B can reverse the charges and show that by E&J's argument, E&J are infringing on E&B. E&J's larger pockets would make lawyers salivate for the settlement they could get by applying E&J's argument back on them.

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

  • identicon
    DOlz, 29 Jul 2017 @ 10:21am

    If they can’t they think the public can't

    Since E&J Gallo produces fine products such Boone’s Farm, Thunderbird, and Ripple perhaps their taste buds can no longer differentiate between different beverages.

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

  • The local brewer is asking the right question when he says, "I'd like to get an explanation as to what they think is confusion." That's what trademark disputes always come down to. Would the purchasing public be likely to be confused into thinking that products of two different manufacturers actually come from the same source. Here, the question is not whether E&B is too close to E&J but whether the overall impression created by the two logos is such that consumers with some vague recollection of the E&J logo would be likely to think they are buying the product from the same company when they get to buy beer with E&B logo. I would say that if you don't know the history behind both brands, the answer to that question is, possibly yes. Apparently, E&J does not mind that E&B keep the mark as long as they restrict their sales to Michigan and Ohio, which is probably as far as common-law would protect E&B's brand.

    Andrei Mincov
    Founder and CEO of Trademark Factory® / https://trademarkfactory.com, the only firm in the world that offers trademarking services with a predictable, guaranteed result, for a predictable, guaranteed budget. We can help you register your trademarks with a free comprehensive trademark search, for a single all-inclusive flat fee, with a 100% money-back guarantee.

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


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