Corngate Continues: MillerCoors sues Anheuser-Busch for Trademark Dilution

The Patriots and the Rams weren’tthe only ones going butting heads this past Super Bowl. As many of us havelikely seen through one medium or another, back in February Bud Light aired aballsy ad during this year’s Super Bowl, and the target was brewing mega-corpMillerCoors. The spot, called Special Delivery, depicts a fictional medieval-era king on aquest to return a barrel of corn syrup, mistakenly delivered to the Bud Lightcastle, to its rightful owners at either the Miller or Coors Castles. The ad,of course, mocks MillerCoors, implying the company utilizes corn syrup to brewits beers, whereas Bud Light, owned by Anheuser Busch, does not. Thedescription for the ad on Bud Light’s YouTube is far less subtle: “Miller Liteand Coors Light use corn syrup. And Bud Light doesn’t.” This, according toAnheuser-Busch, is a good enough reason for beer drinkers to choose Bud Lightover its competitors.

Bud Light’s point? Transparency. “[W]e are going to continue talking about our ingredients and what we leave out because consumers told us transparency is important.”

Corn syrup is the punchline of the false claims; MillerCoors is the casualty of the misleading Campaign.

So the “Corngate” saga was born.But now MillerCoors is suing. On March 21 of this year, MillerCoors filed suitin Madison, Wisconsin, allegingfalse advertising and trademark dilution. In the complaint, MillerCoorsstates that Anheuser-Busch is deliberately confusing consumers, as cornsyrup is commonly used by breweries in the brewing process to allow yeastto grow and bring about fermentation. It states further that “[u]nder the guiseof ‘transparency,’ AB singled out MillerCoors use of a common brewingfermentation aid, corn syrup, for a deliberate and nefarious purpose: it wasaware that many consumers prefer not to ingest ‘high-fructose corn syrup’ or ‘HFCS,’and had reportedly conducted extensive focus group testing in which it foundthat consumers do not understand the difference between ordinary corn syrup(used by numerous brewers, including AB itself) and HFCS, the controversialsweetener commonly used in soft drinks . . . [Then,] AB invested an enormousamount of money—over $13 million in media time to convey the message to nearly100 million consumers during Super Bowl LIII alone—toperpetuate the consumer confusion.”

In the realm of intellectual property law, MillerCoors also alleges federal trademark dilution. Specifically, it alleges Bud Light engaged in its campaign “with the specific intent to damage the reputation of the Coors Light and Miller Lite brands and products, preying on consumers’ negative association with the presence of HFCS in beverages and foods. Corn syrup is the punchline of the false claims; MillerCoors is the casualty of the misleading Campaign.”

Under Section 43(c) of theLanham Act,  “the owner of a famousmark . . . shall be entitled to an injunction against another person who, atany time after the owner’s mark has become famous, commences use of a mark ortrade name in commerce that is likely to cause dilution by blurring or dilutionby tarnishment of the famous mark. . . .”

To succeed on a federal dilutionclaim takes some work. Per Louis Vuitton Malletier S.A. Haute DiggityDog, LLC, the claimant must show the presence of four key elements: theplaintiff must own a famous mark that is distinctive; the defendant must havecommenced using a mark in commerce that is allegedly diluting the famous mark;the similarity between the two marks gives rise to an association between thetwo marks; and the association is likely to impair the distinctiveness of thefamous mark or is likely to harm the reputation of the famous mark.

Additionally, there are “fair use”exclusionary hurdles the claimant must clear under Section 43(c)—such asuse in connection with advertising or promotions, use in connection withidentifying, parodying, criticizing, or commenting on the famous mark, use inconnection with forms of news reporting and commentary, and any noncommercialuse of a mark.

It remains to be seen, of course, whether MillerCoors will prevail here, but the road ahead will not be an easy one for this claimant. Just at a glance, per Section 43(c)’s terms, Bud Light’s Special Delivery ad seems to fall squarely into the advertising exception, if not also within the use in connection to a critique. But one thing is certain—MillerCoors will not take the jab lying down. In fact, and just in time for March Madness, the plaintiff brewing company intends to release two ads to flip the joke on Anheuser-Busch, which will show actors in period clothing—referring back to Bud Light’s use of the medieval backdrop—enjoy cans of Miller Lite behind the set. Battling brews mixed with petty media comebacks? We’ll drink to that.

Chelsea Pieroni, 25 March 2019