A Sober Investment

Submitted by patentadmin on Sun, 03/27/2011 - 22:10

Many's the man who spent the night sleeping on the sofa because his wife found a lipstick print on his shirt collar. Well, now we have the case of two liquor companies which find themselves in court because their competitor found lipstick prints on their vodka bottles. (JL Beverage Company LLC v. Fortune Brands Inc. and Jim Beam Brands Co.)

JL Beverage sells a line of five “high quality” flavored vodkas – tangerine, apple, premium (?), pineapple and passion fruit. Appearing on the bottles of these loathsome concoctions is the registered trademark JOHNNY LOVE VODKA in which a lipstick print forms the letter “O” in the word “Love.” The color of the lipstick varies depending on the flavor of the vodka.

The defendants, heretofore respectable companies marketing JIM BEAM bourbon, have, for some reason, stooped to selling a line of PUCKER flavored vodka. Appearing on the bottles of this dreadful stuff is a lipstick print, the color of which varies depending on the flavor of the vodka.

In the avowed belief that this use of color-coded lipstick prints, by the defendants, “is likely to cause consumers to be confused, mistaken, or deceived as to the affiliation, connection or association of Defendants’ Infringing Goods with Plaintiff,” JL Beverage sued, alleging trademark infringement, false designation of origin, and unfair competition. It is seeking damages, “all profits derived by the Defendants,” treble damages, interest, “reasonable costs, expenses and attorney’s fees,” a permanent injunction and the destruction of “any and all Infringing Goods.” (We certainly support this last demand, whatever the outcome of this case.)

Purely as a matter of trademark law, we find this matter interesting. On one hand, the goods of the respective parties are identical – flavored vodka (ugh!). On the other hand, the lipstick prints form only a small portion of the marks used by the two parties. Being even-handed, and a confirmed bourbon drinker, we can only wish a pox on both their houses for selling this stuff. We’ll keep you informed.

THE LESSON TO BE LEARNED: Do a search of competitors’ marks and a sober assessment thereof before adopting a new trademark.

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