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Patagonia trademark suit against Anheuser-Busch not dismissed

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

On Sept. 3, a judge of the U.S. District Court for the Central District of California refused to dismiss five claims in an April trademark lawsuit brought by Patagonia, the retailer of environmental and outdoor fame, against giant brewer Anheuser-Busch over its beer named Patagonia. This left all eight of Patagonia's causes of action still standing and awaiting resolution through settlement or trial.

Patagonia, based in California, is a retail company specializing in outdoor clothing and gear and known for its environmental advocacy. Patagonia Provisions is a related company that sells food and beer.

Anheuser-Busch introduced Patagonia Beer to the market in a promotion at a ski resort in Colorado. Its logo has a mountainous silhouette similar to Patagonia's logo. At the resort product launch, personnel wore clothing with the logo and marketed the brew as part of an environmental "tree positive" mission, according to Courthouse News. (This article links to the court order itself, which contains side-by-side comparative photos of the logos.)

Patagonia alleges that Anheuser-Busch deliberately tried to confuse the marketplace about the source of the beer with its similar logo and conservation theme. Patagonia also alleges that Anheuser-Busch used fraud in getting a trademark on the word Patagonia in relation to beer.

The beer company responds that it owns the trademark and that the beer had been brewed for a decade in Argentina before Anheuser started selling it in the U.S.

In its motion to dismiss, one of Anheuser's main arguments against the plaintiff's allegation of trademark dilution was that Patagonia as a mark was not distinctive enough to be famous. The judge disagreed and found that Patagonia "sufficiently alleged that its Patagonia mark is famous and distinctive." In a dilution claim, the plaintiff and defendant need not be selling related goods and services, nor does the plaintiff need to prove customers are likely to be confused.

Assuming the facts plaintiff alleged are true and looking at them in a light most favorable to plaintiffs, Patagonia has sufficiently alleged a famous mark. Some of the facts alleged include 40 years of business, great effort and money toward promotion and advertising, worldwide sales of $10 billion and large donations to environmental causes.

We will follow this lawsuit and report back in this space any significant developments.

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