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.

Limey! Another Beer Battle a-Brewing

News today that another battle is brewing in Canada’s notoriously litigious beer industry: Waterloo’s Brick Brewing Co. Ltd.–makers of Canadian beer brands Laker, Formosa, Red Cap, Red Baron and Waterloo–has been sued by Anheuser-Busch Co. and Labatt Brewing Co. over its labels for its Red Baron Lime beer product.

In the suit filed August 28 in Federal Court, Anheuser and Labatt take umbrage with the promotional material for Brick’s Red Baron Lime product.  In particular, they allege the labeling scheme used on Red Baron Lime products, including the use of the colours silver and green together with the depiction of a half a lime, will confuse consumers into believing there is a connection with their own Bud Light Lime product, whose label uses the colours green and white together with the depiction of a wedge of lime.

Additionally, Anheuser and Labatt have claimed that Brick’s promotional website for Red Baron Lime–located at lustforlime.com–will lead to consumers to believe there is a connection with the product and the promotional website for Bud Light Lime located at budlightlime.com.  Both sites feature prominent use of the colour green and images of young people in swimsuits. Read more

High Hurdles to Olympic Trade-mark Use

With six months left until the start of the Vancouver 2010 Winter Olympic Games, it seems appropriate to highlight another story involving Olympic trademarks.  The Vancouver Organizing Committee (VANOC) is not the only Olympic Committee vigilantly monitoring the use of Olympics related trade-marks.  A recent bulletin chronicles the steps taken by the US Olympic Committee to protect the word OLYMPIC in the US, including obtaining an injunction against the use by Olympic Supply, Inc. of Maryland of the tradename “Olympic News”.

The bulletin summarizes that, in the US,  specific legislation prevents non-licensed use of the word OLYMPIC unless: (1) there was use with the same goods and services prior to September 21, 1950, or (2) it is obvious that the word refers to the Olympic geographic area named prior to February 6, 1998 and the word relates to goods or services that are marketed in the Olympic area and are not substantially marketed outside of that region.

In Canada, though VANOC has different enforcement tools at its disposal to prevent unauthorized persons from marketing their wares and services in association with the 2010 Olympic and Paralympic Winter Games, the results may be largely the same.   For example, the Olympic and Paralympic Marks Act (which we discussed in a previous post) prohibits any person from adopting or using in connection with a business, as a trademark or otherwise, an Olympic or Paralympic mark or a mark that resembles an Olympic or Paralympic mark.  Lists of prohibited marks (including, of course, OLYMPIC) are set out in Schedules 1 and 2 of the Act.

The Act also prohibits anyone from promoting or otherwise directing public attention to a business in such manner as to lead the public into believing that there is a connection with the Canadian Olympic Committee or Canadian Paralympic Committee.   Perhaps most notably, this Act permits VANOC to obtain an interim injunction against alleged infringers without proof of irreparable harm, which is a significant and unprecedented advantage. Read more

Free iPhone Bike App Sparks Dispute

The Montreal Gazette and La Presse each recently reported on the decision by the Stationnement de Montréal (“SdM”) to assert intellectual property rights against the developer of an iPhone application which pinpoints the locations of public-use bicycles made available for rental by the SdM.

Sparko.ca developed a free iPhone application called BixiMobile, together with a supporting webpage located at www.biximobile.com, to assist online users with finding Bixi bike locations throughout Montreal. The application launched on Sunday; by Tuesday, Sparko had received a cease-and-desist letter from Stationnement de Montréal’s counsel directing the company to withdraw the application, and hand over the domain.  Perhaps more interestingly, it appears SdM have additionally directed Sparko to hand over the code that supports the iPhone application. Read more

GLAMOUR Mark Fails to Dazzle Federal Court

The Federal Court recently handed down its decision in Advance Magazine Publishers Inc. v. Farleyco Marketing Inc., an appeal from an earlier decision by the Registrar of Trade-marks that had found no likelihood of confusion between the Farleyco mark GHOULISH GLAMOUR for Halloween cosmetics and eyelash accessories and the Advance mark GLAMOUR used in association with magazines and related products and services.  New evidence was filed that went significantly beyond that which had been considered by the Registrar, so the Court considered the matter afresh.

The Court found that both marks were inherently weak as both were suggestive of their wares and services but considered whether Advance’s GLAMOUR mark had “an acquired distinctiveness through use and promotion… sufficient to warrant a wide scope of protection”.

The Court determined that while the GLAMOUR mark was well known in Canada in association with magazines (and thus had acquired distinctiveness), it was not associated with all wares and services that make up the glamour industry.  Advance argued that the wares of both parties belonged to the same general class of goods, namely cosmetic, fashion and beauty, but the Court found: “Just because cosmetic products are advertised, discussed, or otherwise featured in Advance’s magazine and related wares does not mean…  that any acquired distinctiveness of the GLAMOUR mark should extend to cover such products.”

Read more

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.

Oily Loonie offside Official Mark?

Dogwood Initiative, a British Columbia environmental group, is facing legal action from the Royal Canadian Mint over a campaign to add one million oily loon decals to loonies in circulation.  (For our international readers, “loonie” is the commonly used term used to refer to the Canadian one dollar coin.)  Dogwood’s campaign is intended to create awareness about the risks of oil tanker traffic on BC’s north central coast, in the hopes that legislation might be passed banning such traffic.

The Royal Canadian Mint has alleged Dogwood Initiative’s activities bring it offside the Currency Act, but query whether the Mint may also have an action under the Canadian Trade-marks Act (the "Act"), for infringement of the Mint’s Official Mark rights in the loonie.

Section 9 of the Act deals with Official Marks, and in particular, it prohibits the adoption in connection with a business, as a trade-mark or otherwise, of any mark which consists of, or so nearly resembles as to be mistaken for, an Official Mark. Read more