Jim Beam and Johnny Love Beverage Co. are in a very heated dispute over puckered lips. Recently, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the lower court erroneously granted Jim Beam summary judgment over their argument that Jim Beam’s “puckered lips” are the real lips while Johnny Love’s “puckered lips” are infringing upon Jim Beam. The court sent the two parties back to court in order to determine whose lips are the real ones.
Johnny Love Vodka, a Nebraskan-based company, sued Jim Beam, the well-known Kentucky bourbon—but Illinois-based—company, for infringing on their “puckered lips” trademark. Johnny Love’s main line of vodka represents on their bottles “Johnny Love.” (The “o” is replaced with an image of puckered lips, colored to the flavor of vodka for that bottle.) Jim Beam, on the other hand, has a line of vodka specifically titled “Pucker Vodka.” These particular bottles do not contain the puckered lips in place of any letter. Instead, these bottles contain the word “pucker” across the top with an image of puckered lips underneath it, colored to the flavor of vodka of that bottle.
PROTECTING YOUR UNIQUE COMPANY IDENTITY
This case is very similar to the trademark dispute between Citigroup and AT&T regarding “Thank You.” The court has to answer this question: “Will a consumer likely be confused by these two trademarks because they are too similar?” Reasonably, trademark confusion could lead to unfair competition. If there were no laws offering at least some protection for a business’ uniqueness in name, brand or practice, then what would stop every company from simply riding the coattails of those that sacrificed in order to make their company different? For example, Apple, Inc. is a household name perhaps solely because of its eminent logo. To quote the cinematic classic, The Incredibles: “If everyone is super, no one will be.” We call this trademark dilution.
How are you, Mr. Up-And-Coming Business Owner, supposed to wade through the sea of company logos, trademarks, catchphrases and names to ensure your very own company identity is unique enough to remain “super”? Likely, your first stop is to check out the United States Patent and Trademark Office’s website and search for the trademark you have in mind. The search won’t give you 100% assurance that your phrase/logo isn’t already trademarked, but it will give you a good place to start.
CONSUMER CONFUSION ANALYSIS
Additionally, you will also need to know about the “consumer confusion” analysis. Sometimes, the law is confusing, but not here (mostly). The consumer confusion analysis can be boiled down pretty simply: A plaintiff claiming trademark infringement under the consumer confusion analysis must show that there is a “likelihood that an appreciable number of ordinary prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.”
A good litmus test may look like this: Person X says “Hey, that looks like Company A’s ice cream brand. Person Y says, “You’re right, it looks like it, but the container says ‘Company B.” Depending on context and details, evidence of such a conversation might show that Company B has harmed or diluted Company A, or it might show that there is no harm, because the public ultimately knew the difference.
