I was in the liquor section of the grocery store today and noticed that 2 different beers from 2 distinctly different brewers are currently using slogans that, while not identical, are rather similar.
Amstel light is touting itself as “One Dam Good Bier” and Mountain Creek is being advertised as “Damn Good Beer”. Both had the little trademark icon on them near the slogan on the 12 packs.
Like I said, not identical, but similar. Think some corporate lawyer will get his undies in a bunch?
Yes, a corporate lawyer could get his undies in a bunch. I don’t know who would have a legitimate claim.
Just an example. Back in the 90’s Pizza Hut started selling a Pizza called “the Edge” As it turned out, a chain from Ohio called Donatos (whose pizzas I enjoyed for a few years) had been advertising its pizzas using a trademarked phrase “Edge to Edge”. Both pizzas were similar, thin crust pies with toppings (as you can imagine) all the way to the Edge of the pie. Donatos sued saying that the Pizza Hut offering could cause confusion and violated the trademark.
Initially a judge barred Pizza Hut from advertising its pizza under that name in markets where Donatos had a strong presence. I think Pizza Hut then ponied up some cash in a settlement.
In that case, Donatos had used “Edge to Edge” for some years in those markets. They were able to make the claim that people in those markets would automatically associate an “Edge” pizza with that firm.
With the beers there are probably a ton of factors that would affect whether one firm could stop the other from using the phrase. Was one company using it first? How long had they been using it? Is it essential to marketing the beer? Is it a unique trademark?
Saying beer is “damn good” may not be unique so it might be hard to make a claim. But if the smaller company started using Damn Good Beer after Amstel’s campaign started, they could be in trouble. But it wouldn’t surprise me if Heineken’s lawyers have looked into it. For all I know, a judge could say that “Dam Good Bier” is meant to invoke the company’s Dutch origins and therefore wouldn’t apply to a phrase in pure English.
U.S. Patent and Trademark Office has two separate applications for “Damn Good Beer”: One from Mountain Crest SRL dba Minhas Brewing, 77925193, makers of the Mountain Creek in your link, and one from Pyramid Brewing, 77643796. Couldn’t find one for “Dam Good Bier” in my very cursory search. The USPTO latest office action for Mountain Crest is letting them know that they can’t register their mark if the application from Pyramid Brewing results in a registered trademark for “Damn Good Beer”. Pyramid had an earlier filing date and an earlier date of using the mark in business, so their application should get priority over Mountain Crest’s in determining which of the two gets the privilege of being a registered trademark.
If you look up the status of Pyramid’s application, they’re having difficulties getting approval of their mark too. You can perform broad U.S. trademark searches at the U.S. Patent And Trademark Office’s site here. Their FAQ is very informative and clear, for what can be an intricate area of law.
I have very little idea what goes into the calculus of a plaintiff deciding to initiate litigation for trademark infringement, so I couldn’t say why Amstel, Pyramid and Mountain Crest aren’t suing each other. I thought the rule was that identical trademarks in the same area of business was a pretty good case for likelihood of consumer confusion, entitling the trademark holder to sue for infringement, but there could be a gazillion other reasons why no one’s suing.
As always, if you think you have an actual legal issue , consult your local attorney. This is not meant to be legal advice. You aren’t my client, and I’m certainly not licensed in your area.
Very interesting post, Gray Ghost.
Damn Good sounds too much like a generic term. While a lawsuit is possible, even odds on success, especially considering the differences.