That's mine, not yours — 7 trademark disputes from 2015
They could range from petty to causing "irreparable" damage, but trademark disputes between brands are not uncommon in the food and beverage industries.
Competition is heating up between larger and smaller companies. "The investment bank Jefferies reports that the [major] brands lost market share in 42 of 54 categories, from baby food to yogurt, over the last five years as new products gained," reports The New York Times.
Major brands will go to great lengths to keep their branding safe from alleged copycats that could piggyback the legacy brand’s success.
Here are seven major trademark disputes that have been filed, appealed, or settled so far in 2015.
Nestle vs. Pervine Foods LLC
Nestle SA is crunching down on an alleged trademark infringement by Pervine Foods LLC's FIT Crunch protein bars, which Nestle said has packaging that too closely resembles its own Nestle Crunch Bars.
"The striking similarities between the infringing marks and trade dress and Nestle’s Crunch trademarks and trade dress make it likely that Pervine’s bars will be mistaken for Nestle’s CRUNCH bars, or a low calorie or healthier version of the same," according to the lawsuit.
The Fit Crunch protein bars have the backing of Pervine Foods founder and celebrity chef Robert Irvine, host of Food Network's "Restaurant: Impossible."
Anheuser-Busch InBev vs. She Beverage
"The Queen of Beer" has become a contested phrase as AB InBev, owner of the "King of Beers" Budweiser, took issue with the phrase being too close to its own regal trademark. California craft brewery She Beverage claimed the name in December, and its products have been available in stores and restaurants since April.
AB InBev had a similar problem with another company that attempted to claim the trademark "Queen of Beers" and won that fight due to "king" and "queen" being "highly similar in connotation and meaning," St. Louis Post-Dispatch reported.
It’s unclear how regulators will rule in this case, but as co-owner Lupe Rose put it to St. Louis Post-Dispatch, "There is no 'Queen of Beer,' and we’re a female-owned company. I didn’t anticipate Budweiser getting their panties in a bunch."
Sazerac Co. vs. Stout Brewing Company
Sazerac, the maker of Fireball Cinnamon Whisky, has sued Stout Brewing Company over trademark infringement by the marketing materials for Stout’s malt liquor brand, Fire Flask. Fire Flask's packaging "features a 'similar' horned demon figure on its label, the lawsuit claims, and also uses the same colour scheme and red bottle caps," The Spirits Business reported.
As Fire Flask’s name and packaging are "confusingly similar" to Fireball’s, according to the lawsuit, Sazerac feels the brand was piggybacking "on the longstanding goodwill" of Fireball. A lawyer sent Stout a cease-and-desist letter in July, the lawsuit said.
Sazerac is going after not just an injunction banning sales under the Fire Flask label, or any other packaging and graphics that are too similar, but also a cancellation of the pending Fire Flask trademark and profits from Fire Flask’s sales, in addition to other relief.
Diageo vs. Captain Amsterdam
Diageo has seen its Captain Morgan marketing components plundered by one too many other companies, this time allegedly by Captain Amsterdam, an herbal remedy and e-cigarette refills seller. The lawsuit stated that Captain Amsterdam imitated the Captain Morgan character, including features like a red pirate hat, flowing red cape, long black hair, a moustache, and a grin, as well as the "Captain" and "Captain Morgan" words in its marketing materials. Compare the two here.
Diageo’s main concern seems to not so much be about the benefit Captain Amsterdam may have derived from using Captain Morgan lookalike materials. Diageo instead worries that Captain Amsterdam could be causing "irreparable injury" to the Captain Morgan brand due to Captain Amsterdam’s reputation for selling controversial substances, such as salvia and kratom leaves.
This wasn’t the first time Captain Morgan saw action in the courtroom. Last year, Diageo instigated a similar trademark swordfight with Heaven Hill Distilleries over the Captain Morgan-resembling marketing for Heaven Hill’s Admiral Nelson rum.
A Diageo spokesperson told Just-Drinks, "Captain Morgan is one of the most well-known and iconic spirit brands in the US and globally. We will strongly protect our intellectual property rights."
PepsiCo, Inc. vs. Princeton Vanguard
Princeton Vanguard, a division of Snyder’s-Lance, received an appeal in the case concerning its trademark of Pretzel Crisps, which PepsiCo initially challenged. The U.S. Court of Appeals for the Federal Circuit ruled the Trademark Trial and Appeal Board (TTAB) had applied the incorrect legal standard when it did not register the "Pretzel Crisps" trademark as requested by Princeton Vanguard.
TTAB initially sided with PepsiCo, which argued that "the term 'Pretzel Crisps' is generic for pretzel crackers and is highly descriptive of a type of cracker product and has not acquired distinctiveness, and thus is not registerable," Food Business News reported. The board ruled that the Pretzels Crisps' name was a compound term instead of a phrase, which meant Princeton Vanguard could not trademark a generic term.
The appeals court didn’t see it that way. "There is no evidence that the board conducted the necessary step of comparing its findings with respect to the individual words to the record evidence demonstrating the public’s understanding of the combined term: Pretzel Crisps," the U.S. Court of Appeals ruled. "By failing to do so, the board took the type of short-cut analysis we have said is prohibited and ignored evidence that might compel a contrary conclusion."
The case has been sent back to the TTAB.
H.J. Heinz Co. vs. Boulder Brands
Heinz has requested a reversal of the TTAB’s ruling in March when the board decided that Boulder Brands' Smart Balance brand could register their name as a trademark for frozen foods and snacks. TTAB said that the trademark was different enough to not cause confusion with Heinz’s Weight Watchers Smart Ones frozen meals brand.
"The board acknowledged that Boulder’s frozen products would at times be 'legally identical' to the Weight Watchers meals offered by Heinz. However, it also ruled that the two trademarks were significantly different, particularly because their shared element, 'smart,' is a weak, descriptive word that’s commonly used in the food business to indicate healthy foods," Law360 reported.
Heinz did not agree with the board’s interpretation of "smart," and the company also said that TTAB incorrectly concluded that the two trademarks’ meanings and commercial impressions were different.
"The Smart Ones marks are some of the most famous trademarks in the frozen food category. The TTAB erred by not giving proper weight and consideration to the strength and fame of the Smart Ones marks and the evidence of substantial advertising, use, consumer recognition, marketing and sales," the company said.
The Hershey Co. vs. Mars, Inc.
Hershey and Mars reached a settlement in March, each dropping its lawsuit against the other company. Mars’ brand Maltesers went head to head with Hershey’s Malteser wherein Mars said the two brands were confusingly alike and that Hershey had breached Mars’ trademark, which Mars held for 30 years before Hershey introduced Malteser.
Mars said Hershey was selling a "fake" Malteser product with the intention of pushing out Maltesers to boost Hershey’s Whopper brand, as the two are competitors in the malt chocolate segment, Just-Food reported.
Spokespeople from both companies used the word "amicably" to describe how Hershey and Mars reached this settlement.
Food and beverage companies know that marketing and branding can mean everything when it comes to developing a reputation with consumers, especially as smaller companies continue to encroach on major brands’ sales. Those larger companies will likely be ready to defend themselves anytime a smaller company encroaches on their trademarks.