Tales from the Land of Legal Absurdity: Trademarks Run Amok
Feb. 09, 2015
It seems like every day we come across some new absurd trademark dispute. Today, Red Bull, the energy drink maker, has opposed a small Virginia brewery’s right to trademark the name Old Ox Brewery. Why? As Red Bull argues, an ox is really just a castrated bull, so the two marks are similar (I’ll leave the merits of that argument up to the bulls about to be castrated).
And that’s not all. The Motion Picture Association of America (MPAA) forced one of our own local Minnesota craft breweries, 612Brew, to change the name of its “Rated R” rye IPA because clearly, anyone who sees that name would think the MPAA is now brewing beer on the side. Read on for more details.
The first two paragraphs really say it all. Red Bull is opposing Old Ox’s right to the name Old Ox because it believes bulls and oxen (I think that’s the proper plural) are similar. To be fair to Red Bull, Old Ox apparently plans to use Old Ox on non-alcoholic soft drinks, in addition to beer, so the products are at least potentially similar. That said, I do not think Red Bull’s case is particularly strong (e.g., “bull” sounds nothing like “ox”). While the use of the same animal to advertise similar products having nothing to do with the animal could potentially lead to confusion, National Nonwovens, Inc. v. Consumer Products Ents., Inc., 397 F. Supp. 2d 245, 258 (D. Mass. 2005), this does not seem like a case where confusion is likely. Regardless of the merits, this seems like a bad idea for Red Bull. It’s a large corporation taking on a small, family-run brewery. Regardless of the merits, it’s likely going to lead to bad press. For example, Old Ox’s president sent Red Bull a letter that has been published online and will likely only bolster Old Ox’s consumer base (also, it’s a really clever letter and a strong marketing tool, referring to the American dream, a family-run business, the “big Red Bully” and the “Red Bulls**t” argument).
In another instance of a trademark dispute, the MPAA got 612Brew to stop using the “Rated R” name for its rye IPA. While 612Brew argued that the products or services offered by each were entirely different, the MPAA would not back down, so 612Brew, in a clever branding decision, changed the beer’s name to “Unrated.”
Even when you think your product’s name is safe from trademark disputes, that is not always the case. An exhaustive search in these cases may not have triggered doubt in anyone’s mind, but the owners of trademark rights may have other ideas about how far their rights extend.