{"id":6234,"date":"2019-04-01T21:32:07","date_gmt":"2019-04-02T01:32:07","guid":{"rendered":"http:\/\/ncjolt.org\/?p=6234"},"modified":"2020-06-04T20:52:26","modified_gmt":"2020-06-04T20:52:26","slug":"corngate-continues-millercoors-sues-anheuser-busch-for-trademark-dilution","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/corngate-continues-millercoors-sues-anheuser-busch-for-trademark-dilution\/","title":{"rendered":"Corngate Continues: MillerCoors sues Anheuser-Busch for Trademark Dilution"},"content":{"rendered":"\n

The Patriots and the Rams weren\u2019t\nthe only ones going butting heads this past Super Bowl. As many of us have\nlikely seen through one medium or another, back in February Bud Light aired a\nballsy ad during this year\u2019s Super Bowl, and the target was brewing mega-corp\nMillerCoors. The spot, called Special Delivery<\/em><\/a>, depicts a fictional medieval-era king on a\nquest to return a barrel of corn syrup, mistakenly delivered to the Bud Light\ncastle, to its rightful owners at either the Miller or Coors Castles. The ad,\nof course, mocks MillerCoors, implying the company utilizes corn syrup to brew\nits beers, whereas Bud Light, owned by Anheuser Busch, does not. The\ndescription for the ad on Bud Light\u2019s YouTube is far less subtle: \u201cMiller Lite\nand Coors Light use corn syrup. And Bud Light doesn\u2019t.” This, according to\nAnheuser-Busch, is a good enough reason for beer drinkers to choose Bud Light\nover its competitors.<\/p>\n\n\n

Bud Light\u2019s point? Transparency. \u201c[W]e are going to continue talking about our ingredients and what we leave out because consumers told us transparency is important.<\/a>\u201d<\/p>\n\n\n

Corn syrup is the punchline of the false claims; MillerCoors is the casualty of the misleading Campaign<\/a>.<\/p><\/blockquote>\n\n\n

So the \u201cCorngate\u201d saga was born.\nBut now MillerCoors is suing. On March 21 of this year, MillerCoors filed suit\nin Madison, Wisconsin, alleging\nfalse advertising and trademark dilution<\/a>. In the complaint, MillerCoors\nstates that Anheuser-Busch is deliberately confusing consumers, as corn\nsyrup is commonly used by breweries in the brewing process<\/a> to allow yeast\nto grow and bring about fermentation. It states further that \u201c[u]nder the guise\nof \u2018transparency,\u2019 AB singled out MillerCoors use of a common brewing\nfermentation aid, corn syrup, for a deliberate and nefarious purpose: it was\naware that many consumers prefer not to ingest \u2018high-fructose corn syrup\u2019 or \u2018HFCS,\u2019\nand had reportedly conducted extensive focus group testing in which it found\nthat consumers do not understand the difference between ordinary corn syrup\n(used by numerous brewers, including AB itself) and HFCS, the controversial\nsweetener commonly used in soft drinks . . . [Then,] AB invested an enormous\namount of money\u2014over $13 million in media time to convey the message to nearly\n100 million consumers during Super Bowl LIII alone\u2014to\nperpetuate the consumer confusion<\/a>.\u201d <\/p>\n\n\n

In the realm of intellectual property law, MillerCoors also alleges federal trademark dilution<\/a>. Specifically, it alleges Bud Light engaged in its campaign \u201cwith\u00a0 the specific intent to damage the reputation of the Coors Light and Miller Lite brands and products, preying on consumers\u2019 negative association with the presence of HFCS in beverages and foods. Corn syrup is the punchline of the false claims; MillerCoors is the casualty of the misleading Campaign<\/a>.\u201d<\/p>\n\n\n

Under Section 43(c) of the\nLanham Act<\/a>,  \u201cthe owner of a famous\nmark . . . shall be entitled to an injunction against another person who, at\nany time after the owner’s mark has become famous, commences use of a mark or\ntrade name in commerce that is likely to cause dilution by blurring or dilution\nby tarnishment of the famous mark. . . .\u201d<\/p>\n\n\n

To succeed on a federal dilution\nclaim takes some work. Per Louis Vuitton Malletier S.A. Haute Diggity\nDog, LLC<\/em><\/a>, the claimant must show the presence of four key elements: the\nplaintiff must own a famous mark that is distinctive; the defendant must have\ncommenced using a mark in commerce that is allegedly diluting the famous mark;\nthe similarity between the two marks gives rise to an association between the\ntwo marks; and the association is likely to impair the distinctiveness of the\nfamous mark or is likely to harm the reputation of the famous mark. <\/p>\n\n\n

Additionally, there are \u201cfair use\u201d\nexclusionary hurdles<\/a> the claimant must clear under Section 43(c)\u2014such as\nuse in connection with advertising or promotions, use in connection with\nidentifying, parodying, criticizing, or commenting on the famous mark, use in\nconnection with forms of news reporting and commentary, and any noncommercial\nuse of a mark.<\/p>\n\n\n

It remains to be seen, of course, whether MillerCoors will prevail here, but the road ahead will not be an easy one for this claimant. Just at a glance, per Section 43(c)\u2019s terms, Bud Light\u2019s Special Delivery<\/em> ad seems to fall squarely into the advertising exception, if not also within the use in connection to a critique. But one thing is certain\u2014MillerCoors will not take the jab lying down. In fact, and just in time for March Madness, the plaintiff brewing company intends to release two ads to flip the joke on Anheuser-Busch<\/a>, which will show actors in period clothing\u2014referring back to Bud Light\u2019s use of the medieval backdrop\u2014enjoy cans of Miller Lite behind the set. Battling brews mixed with petty media comebacks? We\u2019ll drink to that.<\/p>\n\n\n

Chelsea Pieroni, 25 March 2019 <\/p>\n","protected":false},"excerpt":{"rendered":"

The Patriots and the Rams weren\u2019t the only ones going butting heads this past Super Bowl. As many of us have likely seen through one medium or another, back in February Bud Light aired a ballsy ad during this year\u2019s Super Bowl, and the target was brewing mega-corp MillerCoors. The spot, called Special Delivery, depicts …<\/a><\/p>\n","protected":false},"author":1,"featured_media":6235,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6234"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=6234"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6234\/revisions"}],"predecessor-version":[{"id":6829,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/6234\/revisions\/6829"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/6235"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=6234"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=6234"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=6234"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}