AB InBev Fails To Get 'Patagonia' Trademark Suit Dismissed

from the nice-try dept

Earlier this year, we discussed a trademark suit brought against Anheuser-Busch InBev by Patagonia, the famed outer-wear maker known best for its association with skiing and outdoor sports apparel. While we usually make a big deal about market separation when it comes to trademark enforcement, this case was notable for two reasons. First, the trade dress choices made by AB InBev for its "Patagonia" beer were quite similar to Patagonia's trademarks, not to mention that AB hosted popup locations at skiing and biking locations to sell its beer, exactly where Patagonia is so well known. Second, AB is a notorious trademark hound, gobbling up all kinds of marks and then wielding them like a cudgel against small entities. If anyone were going to be sensitive to the trademark rights of others, you would think it would be a company like AB. But not so much.

Rather than admitting its error and siding for strong trademark rights, however, AB InBev decided to try to get the lawsuit tossed by claiming that "Patagonia" is not actually well known and therefore should not be afforded federal trademark rights. The court took 20 pages to decide that AB InBev was wrong and that the case would move forward.

U.S. District Judge Virginia A. Phillips disagreed, writing in a 20-page order Tuesday that Patagonia has – at this stage in the proceedings – sufficiently shown its mark is both “famous and distinctive” and that promotion of its brand has factored in its $10 billion in sales since 1985.

“Assuming these allegations are true and construing the facts in the light most favorable to plaintiffs, plaintiffs have sufficiently alleged that its Patagonia mark is “famous” for purposes of its federal trademark dilution,” Philips wrote.

The sales numbers are really all that was required to refute AB's ridiculous claim. Anecdotally, I can say that I haven't been to a ski mountain in a decade or so, and even I am fully aware of Patagonia's brand. The company has been around forever and is a common sight out west.

The court also refused to dismiss on AB's claims that it in fact had not abandoned its Patagonia trademark by not using it for half a decade and that there would be no confusion by the public that its "Patagonia"-branded beer would be confused with the clothing company.

Phillips also denied Anheuser-Busch’s request to dismiss on grounds that Patagonia failed to show that customers would associate their beer with its clothing and its brand of environmentalism. The brewer likewise failed in its argument that it had not abandoned the Cerveza Patagonia mark from Warsteiner despite not using the mark for five years.

Rob Tadlock, a member of Patagonia’s legal team, applauded Phillips’ ruling as “a well-reasoned opinion rejecting Anheuser-Busch’s effort to avoid defending Patagonia’s claims, including that Anheuser-Busch committed fraud on the Trademark Office and has deliberately tried to confuse customers into thinking that Patagonia Cerveza is produced by Patagonia, rather than Anheuser-Busch.”

Again, where is AB's strong stance on trademark in this case in which it is the one that appears to have run afoul of another's trademark rights? To the shock of this writer, it appears the company has something of a "trademark for me, but not for thee" philosophy.

Filed Under: beer, outdoor gear, patagonia, trademark
Companies: inbev, patagonia


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  • identicon
    Pixelation, 17 Sep 2019 @ 8:34pm

    If only...

    AB Inbev would die by the double edge sword. A fitting end for greedy.

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

  • identicon
    Anonymous Coward, 17 Sep 2019 @ 9:41pm

    Patagonia who?

    I've been boarding for decades, and I can't say that I've ever heard of Patagonia outside of the Top Gear episode. Which kinda adds some credibility to AB's claims of nonuse, and abandonment.

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

    • icon
      Mike Masnick (profile), 17 Sep 2019 @ 10:53pm

      Re: Patagonia who?

      I've been boarding for decades, and I can't say that I've ever heard of Patagonia outside of the Top Gear episode. Which kinda adds some credibility to AB's claims of nonuse, and abandonment.

      What, really? It's... everywhere, at least where I am. I mean, it's so everywhere that it's kind of a cliche. It's like Starbucks. It's such a cliche that the "VC Starter Kit" joke thing includes a Patagonia vest: https://vcstarterkit.com/

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

      • icon
        PaulT (profile), 18 Sep 2019 @ 12:11am

        Re: Re: Patagonia who?

        "What, really? It's... everywhere, at least where I am"

        Must be a regional or lifestyle thing. I've not really heard it in the context of clothes, although I admit I'm not one for fashion or winter sports. I'd definitely think of something like The North Face or Helly Hansen first.

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

        • identicon
          urza9814, 18 Sep 2019 @ 7:11am

          Re: Re: Re: Patagonia who?

          I'm not big on clothes and I avoid sports of all kinds as much as possible, but I'm quite familiar with Patagonia. I would have guessed they were bigger than North Face honestly. And I've certainly never heard of "Helly Hansen"...

          And given that the article says it's common "out west", yet I've never lived further west than Pittsburgh, I'm not sure that it would be a regional thing...I did grow up in a small town which is mostly where I recall hearing of them though so maybe it's a rural thing?

          Of course, I look up movie schedules and see what the latest big blockbusters are and I've usually never heard of ANY of them these days..."famous" doesn't mean what it used to...

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

          • icon
            PaulT (profile), 18 Sep 2019 @ 8:12am

            Re: Re: Re: Re: Patagonia who?

            "And I've certainly never heard of "Helly Hansen"..."

            I mainly know of them because I lived in a town popular with kite surfers for a few years and the logo was quite distinctive and on or in every shop. Yet, according to Wikipedia, the company is worth double that of Patagonia. Perspectives are funny things, aren't they?

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

    • identicon
      anon, 18 Sep 2019 @ 4:56am

      Re: Patagonia who?

      the abandonment claim was against AB, for their Patagonia Cerveza brand they owned under Warsteiner and decided to reissue with branding that mimic'd the clothes company. If you have boarded for decades and not noticed a Patagonia label I wish you safety on the slopes!

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

    • icon
      Jeremy Lyman (profile), 18 Sep 2019 @ 5:44am

      Re: Patagonia who?

      I've never snowboarded but known about Patagonia clothing for decades; so we cancel out I guess.

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

      • icon
        tweetiepooh (profile), 18 Sep 2019 @ 8:32am

        Re: Re: Patagonia who?

        I've never snowboarded either but my Patagonia fleece I bought in the early 90's is still fine and I purchased it in Wales so is about as far west as I can go without swimming.

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

  • icon
    PaulT (profile), 18 Sep 2019 @ 12:08am

    ""Patagonia" is not actually well known"

    I'd argue that Patagonia is very well known... as a region that supplies quality Argentinian beef. The fact that some American company took the name of their region and decided to make clothes should be irrelevant to beer, however.

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

    • identicon
      anon, 18 Sep 2019 @ 5:07am

      Re:

      Actually, it is very well known, and making 10 billion dollars under a trademark offers you a lot of protection in court. If Patagonia started making shirts about 'Jimmy Budweiser' passed out drunk in the woods again, surrounded by littered beercans, they would probably have to answer for it too.

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

      • icon
        PaulT (profile), 18 Sep 2019 @ 5:48am

        Re: Re:

        "Actually, it is very well known"

        To you, perhaps, but as I don't do much that calls for their type of product I don't really hear that name in reference to clothing. You'll find that household names in some regions or industries either don't mean a thing to others or is best known for something else.

        My point is this: whichever company decided to use the name first, both of them took it from a region of a country that's best known for something unrelated to either of them.

        "making 10 billion dollars under a trademark offers you a lot of protection in court"

        Erm, where are you getting that figure? A quick Wiki search shows the company is only worth around $200 million. Not peanuts for sure, but not exactly what you're claiming, unless you were referring to AB InBev (in which case you're off by an order of magnitude the other way).

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

        • identicon
          urza9814, 18 Sep 2019 @ 7:00am

          Re: Re: Re:

          "To you, perhaps, but as I don't do much that calls for their type of product I don't really hear that name in reference to clothing. You'll find that household names in some regions or industries either don't mean a thing to others or is best known for something else."

          I do nothing that calls for that type of clothing; and apparently it's big "out west" while I can count on one hand the number of times in my life that I've been further west than Pittsburgh..but I am also quite familiar with this brand. I recall TV ads, magazine ads, probably other ads...I would have guessed they were bigger (but less "fashionable") than North Face, although based on the other comments here maybe not?

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

          • icon
            PaulT (profile), 18 Sep 2019 @ 8:09am

            Re: Re: Re: Re:

            "I recall TV ads, magazine ads, probably other ads.."

            I don't believe I've ever seen one, but it's a while since I've watched ad-supported T with any regularity. Maybe it's just one of those things where they're more popular in the US than anywhere else?

            Again, I'll just stress - I'm not saying anyone's right or wrong wrt to the claims in the lawsuit, it's just that it does seem to be quite possible not to have come across the clothing brand despite the disbelief expressed by some. This might just be one of those bubble things, where the place you live has something ubiquitously but go somewhere else and nobody's ever heard of it. I travel internationally on a regular basis, so I see such things all the time.

            "I would have guessed they were bigger (but less "fashionable") than North Face"

            Well, the "less fashionable" bit might be the key. As I mention, I'm not big on winter sports, so I would only notice the people wandering around in brands worn for fashion outside of that arena. of course, I might step outside now and spot people wearing them all the time now that it's something I'm likely to notice!

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

        • identicon
          Anonymous Coward, 18 Sep 2019 @ 8:39am

          Re: Re: Re:

          Even the article mentions Patagonia having made $10B in sales under the Patagonia name since 1985.

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

        • icon
          OldMugwump (profile), 18 Sep 2019 @ 8:41am

          Re: Re: Re:

          I'm curious - what part of the world do you live in, PaulT?

          I live in Boston, and Patagonia is a familiar brand. I'm not a skiier.

          The first time in my life that I heard the name "Helly Hansen" was in your post above.

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


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