UPDATE: Dec. 16, 2020: While courts have ruled against postponing the launch of Vizzy while this lawsuit was pending, the trial judge ruled against Molson Coors' motion to dismiss it. The case brought by Future Proof Beverages will go forward to trial, but no date has been set.
"We have already seen so much confusion in the market, and we are quite confident in winning our lawsuit to protect our brand," Justin Fenchel, co-founder and CEO of Future Proof, said in a written statement. "Molson Coors has proven time and time again they will use their size and resources against small businesses and we refuse to let that happen to us."
In a statement emailed to Food Dive, Molson Coors said the ruling didn't impact the case at large.
"Future Proof continues to live in fantasy-land, not reality," the statement says. "The courts have ruled in our favor multiple times in this case, and they have repeatedly denied Future Proof’s request for a preliminary injunction. This ruling simply means the case will proceed, and we are very confident we will prevail because Future Proof’s belief that it is entitled to market exclusivity on fizzy-themed beverage names is completely misguided."
- Future Proof Brands, parent company of Brizzy hard seltzer, accused Molson Coors of stealing the name of its product for Molson's upcoming hard seltzer launch, Vizzy, according to a lawsuit filed last week in U.S. District Court in Texas. The upstart wants the court to prohibit Molson Coors from calling its new product Vizzy, as well as award it any damages caused by the confusion.
- The lawsuit states Molson Coors was fully aware of Future Proof's Brizzy, which was created by the company and a renowned mixologist in 2018. Brizzy launched with five flavors last September, and the lawsuit estimates sales will eclipse $2 million in its first year.
- "Now let’s be clear, we are all about welcoming competition; after all, it’s the thrill of competing that spurs the innovation we thrive on," Future Proof wrote in a blog post on its corporate website. "However, we pride ourselves on standing out and leading thought in spaces where tradition runs deep. Much to our surprise, Molson Coors conceded having reviewed our website and even acknowledged our Brizzy products were first to the market, but decided to use the confusingly-similar name Vizzy anyway. Molson Coors gave us no choice to oppose their plans to infringe on the Brizzy trademark."
As it becomes clear that hard seltzer is the best place to find growth in the alcoholic beverage space today, everyone is jumping in. Competition is already tight, and this legal dispute shows how companies are working to gain even the slightest advantage over other companies in the space.
According to Beer Business Daily articles obtained by Food Dive, Future Proof first sent Molson Coors a cease and desist letter last month. Future Proof co-founder Justin Fenchel said the announcement of Vizzy came within two months of Brizzy's official launch. The company wrote in its cease and desist letter that it believes Molson Coors may have had early access to the brand name, taste profiles and packaging design for Brizzy.
In the trade newsletter, Molson Coors responded it was able to get its name trademarked, after all, and has packaging that is "markedly different and has differentiated ingredients. We don't believe consumers will be confused." The beer giant also said when it was filing for the trademark on Vizzy, "Brizzy had a static web site that looked as though it was only in very limited distribution."
While Future Proof may seem like a small player in the alcoholic beverage space, it's one with a lot of weight and influence. In 2014, the founders pitched their first drink, the portable, low-calorie and 11.1% ABV wine cocktail BeatBox on Shark Tank, getting a $1 million investment from Mark Cuban. The well-known investor has continued to promote the company following the initial investment.
On the other side of the dispute, however, MillerCoors — the brewer's U.S. business unit — is putting a lot behind Vizzy. The hard seltzer includes acerola cherries, a superfruit that features 30 times more vitamin C than oranges. Brizzy isn't a functional beverage. It is marketed more as a craft hard seltzer targeted at foodies.
With so much at stake, Future Proof argues consumers will be confused by the two similarly named products. Similar cases have been successful in court before. CytoSport, now owned by PepsiCo, sued Vital Pharmaceuticals in 2008 arguing that Vital's protein beverage, then called Muscle Power, was too similar to CytoSport's Muscle Milk. The court ruled in CytoSport's favor, saying that consumers are likely to be confused because both products are inexpensive and shoppers would be less likely to deliberate on which one to buy.
Disputes similar to this one are currently pending in courts, and they may have an impact on what happens in the Molson Coors lawsuit. The sports drink division of Vital Pharmaceuticals, which makes Bang Energy, sued Monster Beverage last March. Vital Sport says Monster stole its branding for its Reign energy drink, which has no sugar or calories. The can design, colors and flavor lineup are nearly identical, the lawsuit says. According to a docket report, settlement discussions are currently on the table.