More Beer Brand Wars

You can tell that it’s Fall up here in the Great White North.  The weather is turning cooler, the NHL preseason is in full swing and another trademark battle between Canadian brewery icons Molson and Labatts has started. 

A recent report indicates that Molson Coors Brewing Company has launched a lawsuit in Canada’s Federal Court against Labatt Breweries of Canada, claiming that the mountain imagery in new ads for Labatt Kokanee beer infringes the copyrighted images that Molson uses on its Coors Light beer products in Canada.  Molson is reportedly seeking $10 million in damages.

For its part, Labatts says that mountain imagery has been part of its branding for four decades and that the new graphics feature the same Kokanee Glacier that the beer is named after.

Trademark Clearinghouse To Help Combat Cybersquatting?

A story earlier this week reported that the Internet Corporation for Assigned Names and Numbers (ICANN) – the organization charged with oversight of the Internet, including the creation of new generic top level domains (gTLD’s) – is considering setting up a centralized database of trademarks to help combat cybersquatting and other negative domain name registration practices.  The proposed IP Clearinghouse would be a depository for trademarks and provide unified rules for trademark holders to block domain name registrations that include use of such trademarks, unless the applicant can prove that its proposed use will be legitimate.

This proposal will be closely monitored by the trademark community as ICANN continues to move forward with its controversial proposal to exponentially expand the number of gTLDs.  The concern of trademark holders is that the task of protecting their brands online, which is already difficult enough with the existing gTLDs, will become prohibitively expensive.

The idea of the IP Clearinghouse was one of the recommendations outlined in the Final Report on Trademark Protection of ICANN’s  Implementation Recommendation Team (IRT).  At the recent ICANN meeting in Sydney, the IRT presented its report. The IRT Final Report was open for public comment until June 29, 2009.   ICANN might not make a final decision on the idea until late 2009, at which time it could potentially decide on a variation of the IP Clearinghouse, depending on the public comments that it receives.

Though it appears to be a moving target at the moment, the launch of the new gTLDs could potentially take place as early as February or March of 2010.

Breweries Battle Over Ontario

In yet another Canadian trademark dispute involving alcoholic beverages – seems to be a bit of a trend lately – Ontario based Brick Brewing Co. Limited has issued an announcement that Labatt Brewing Company Limited has commenced an action in Canada’s Federal Court against Brick, alleging that Brick’s RED BARON trademark infringes Labatt’s BRAVA trademark.  While these marks, taken by themselves, seem quite different, the dispute focuses on the similarities between the labels and packaging used with these products, along with the similarity of the bottles.

In an interesting side bar, Labatt has a significant ownership interest in Ontario’s “The Beer Store” which is by far the largest retail channel for beer in Canada’s most populous province.  As such, Labatt indirectly receives fees from Red Brick in order to display its RED BARON lager in a lobby display program at The Beer Store, as well as fees to sort RED BARON bottles, which are non-industry standard.  Brick argues that because of the set up of The Beer Store, where more popular brands such as those sold by Labatt are featured more prominently, consumers generally have to ask for Brick’s products, such as RED BARON, by name, thereby lessening any likelihood of confusion.

You Can’t Judge A Wine By It’s Label…

… but you sure can increase sales, or at least improve visibility in a very crowded market.  In a recent story in the Globe and Mail, the author discusses the well documented success of such British Columbia wineries as DIRTY LAUNDRY and LAUGHING STOCK, who re-branded with the help of local wine branding gurus Brandever Strategy Inc. The author then notes the recent attempts by more traditional French wineries, such as Bouchard Père & Fils, to capitalize on the trend away from more traditional wine labels, as a way to increase visibility and hopefully market share.

Canadian Distiller Wins Latest Round In Trademark Battle

Just in time for Robbie Burns day, Canada’s Federal Court of Appeal has ruled that a Canadian distiller of whiskey can use the word GLEN in its trademark, without misleading Canadian consumers into thinking that its product is whiskey that is from Scotland.  This is the latest round in the battle by Bedford, Nova Scotia based Glenora Distillers to register the mark GLEN BRETON in the Canadian Intellectual Property Office in association with its single malt whiskey.  There’s no word yet on whether the Scotch Whiskey Association will appeal the decision to the Supreme Court of Canada.

Dead Frog in a Clear Bottle Leaves Sleeman Seeing Red

Sleeman Breweries has reportedly filed a lawsuit against Dead Frog Brewery over Dead Frog’s use of a clear glass bottle design, in association with its beer. Sleeman is the third largest brewery in Canada; Dead Frog is a small and relatively new enterprise located in Aldergrove, BC. Invoking references to the classic David v. Goliath story, the President of Dead Frog has stated that the lawsuit is a silly waste of time, that there are many similar clear glass bottles on the market, and that the raised glass frog design on his bottles makes his products distinctive from those of Sleeman.

For its part, Sleeman will likely rely on its Canadian Trademark Registration for a distinguishing guise. A distinguishing guise is a type of trade-mark that is a distinctive shaping of goods or their containers or a mode of packaging or wrapping such goods.  To obtain a registration for a distinguishing guise in Canada, an applicant must prove that the distinguishing guise is, in fact, distinctive of the applicant’s wares in Canada. This normally requires proof of significant sales and advertising in every region of the country over an extended period of time. Read more

Comparing Apple to Apple

A report in the Globe and Mail tells the story of a small Vancouver Island school’s run in with tech heavyweight Apple Inc. in a dispute over the use of the school’s logo. Victoria School of Business and Technology (VSBT) reportedly adopted, three years ago, a logo featuring an apple with a silhouette of a mountain and the letters VSBT superimposed over top. VSBT’s apple has three bumps at the top of the apple, uses the colours blue, white and green quite prominently, and the apple is whole: no bite appears to have been taken out of it, as is the case with Apple Inc.’s well known logo. Apple’s logo, which is the subject of numerous registrations at the Canadian Intellectual Property Office (CIPO) and which has been in use for over 30 years, features a bite taken out of the right side, two bumps at the top and no letters or other figures superimposed on it. In the marketplace, the logo is often depicted in an off-white colour; historically, it also often appeared in stripes and other colours as well.

As is often the case in these disputes, the media is portraying the issue as pitting VSBT’s “David” against Apple’s “Goliath.” The school’s website states that “VSBT is the leading provider of computer and business training for government ministries, corporation and individuals,” and indicates that training is available on both IBM-style personal computers as well as Apple’s MACINTOSH-brand computer systems. At the time of writing, we could locate no record in CIPO’s online trademark database of an application to register VSBT’s logo. Read more