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

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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