Anheuser-Busch vs. Flying Dog Brewery
Can a company be liable for copying the overall look and feel of a competitor’s packaging? A dispute on this topic just might be…brewing*…in the beer industry.
I’ve written about issues involving craft beer trademarks before – see here and here. This presents a slightly different type of legal question. Recently Today.com reported that craft brewer Flying Dog Brewing Company is facing “problems” with brewing giant Anheuser-Busch InBev over the appearance of several A-B products.
Flying Dog has developed its visual style by working with famed illustrator Ralph Steadman since 1995. Steadman is probably best known for his work with Hunter S. Thompson and Rolling Stone Magazine:
Speaking as someone who has been known to purchase the occasional craft beer, I can vouch for the distinctiveness of Flying Dog’s iconography. Their bottles and packaging are designed to stand out from the rest of the beers on the shelf. Their imagery communicates that the products are intended to be experimental, creative, and edgy.
Around Fall 2005, A-B began to roll out a trio of fruit lagers, Wild Blue, Rascal’s Wild Red, and Shadow’s Wild Black, with arguably similar imagery – scribbly hand-drawn illustrations of animals, splotches of ink and color, uneven typefaces. If A-B’s did not intend to copy Flying Dog’s style, they certainly stumbled upon a notably similar type of iconography.
Today.com reported that
[Flying Dog CEO Jim] Caruso is pragmatic when asked if he’s considered legal action against the world’s largest brewer. “If we ever sued them, they would crush us with legal fees,” he said.
OK, but what if Flying Dog did decide to pursue legal action against A-B? Although A-B may have taken a few individual elements directly from Flying Dog (Caruso cited some similar words in the packaging copy), they may also be liable for infringing Flying Dog’s trade dress. As I’ve discussed before (see here, here, and here) , trade dress concerns the overall look and feel of a product or business.
From my blog post about a fake IKEA store:
To qualify for trade dress protection, the claimant has to satisfy several legal elements. In some cases, these can be difficult to prove. For example, one element requires that the trade dress must be non-functional, meaning that competitors do not need to use elements of the trade dress in order to compete effectively in the marketplace. However, what appears to be merely ornamental branding to one party (and therefore, eligible for trade dress protection) will often seem functional to the other…Courts also consider a variety of factors such as the strength of the trade dress, the degree of similarity…, and whether there has been actual consumer confusion.
Running down the factors briefly: there’s little question that A-B’s animal cartoons are non-functional, ornamental branding elements. I also doubt Flying Dog would have much trouble showing that their trade dress is strong, given their widespread market penetration over almost 20 years. Furthermore, the Today.com article cites several examples of actual consumer confusion (meaning, people who bought A-B’s beers thinking they were Flying Dog products).
Which brings us to the “degree of similarity” factor. In a statement, A-B said, in part, “…comparing the whimsical blueberry-kicking dog on the Wild Blue label to any of the gothic canines found on Flying Dog is like comparing da Vinci’s Mona Lisa to a Picasso portrait — they may portray a similar subject but stylistically, there’s no confusing the difference.”
I’m not so sure, but it doesn’t look like we’re going to see a jury decide. Perhaps A-B will simply be shamed into developing its own distinctive packaging style for these brands…and perhaps they won’t.
* Only 2 sentences into the blog post and already with the lame wordplay? Sorry, folks, I’ve been on vacation, so my skills may not be as sharp as usual.
