Dissimilar Dragons Spark Infringement Suit
This one is a little bit of a head scratcher. The United Brands Co., which makes the Joose brand caffeinated malt beverage, is suing Anheuser-Busch for trademark infringement, copyright infringement, and a little bit of unfair competition (for good measure, I can only assume).
The suit claims that Anheuser-Busch’s new redesign of their competing malt beverage product, Tilt, ripped off Joose’s product design in bad faith and caused a likelihood of confusion among relevant consumers. Assuming this were the situation, this would be a classic case of common law trademark infringement. Unfortunately, this is a tough assumption to make when one actually compares the products. United Brands claims the can for their Dragon Joose flavor is inherently distinctive and thus deserves protection from the new Tilt can design. Sure, both products have tribal-ish dragon designs, but would anyone honestly think that these products were made by the same source simply because the designs are vaguely similar?
Perhaps this suit is motivated by more than just an arguably weak infringement issue. Maybe, with all the recent negative press about Four Loko (another caffeinated malt beverage) and the FDA set to announce that the caffeine-alcohol combination is so dangerous that prohibiting the sale of such products is justified (how this will affect bar staples like Red Bull and Vodka or Jack and Coke, to be determined), United Brands is simply taking every measure it can to make sure Joose stays a standout competitor in a market that people are likely to lose interest in once the caffeine, taurine, and guarana is removed from the booze. When the difference between a Joose, a Tilt, and an Old E is barely more than the product packaging and target demographic, the look of the can very well may make all the difference. With United Brands already announcing that they are removing caffeine from Joose, rigorous protection of their brand may be the best way to make sure Joose maintains attention from the public without that attention coming from further news of abuse of their “dangerous” product.
So what do you think? Is the Tilt can similar enough to Joose for trademark infringement? Without actually analyzing each of the 9th Circuit’s Sleekcraft factors, I’m tempted to say that United Brands doesn’t have a very strong case. So I’m curious; does anyone agree with United Brands on this one? Moreover, does anyone have enough affection for either of these products to care (besides, of course, United Brands and DLA Piper, who is representing United Brands in the suit)?