Imitation: Is It Flattery, Infringement, Or Just Trend Following?

Guest blog by Lee Distad

This past month, the Ontario-based ‘craft' beer maker, Brick Brewing Company, found itself staring down the barrel of a lawsuit from industry giants Anheuser-Busch and Labatt Brewing, who claimed that Brick's Red Baron Lime beer was a trademark infringement on Bud Light Lime.

Brick Brewing is no stranger to litigation; it recently settled another suit back in June when Labatt claimed that the label for Red Baron infringed on its Brava trademark. Brick Brewing's standard public statement is that these suits are bullying and meritless, and just another example of the big boys in the beer industry trying to push around the little guy. In Brazil, Anheuser-Busch's InBev arm had to pay a record US$176 million fine for anti-competitive practices, a fact that Brick's publicists don't hesitate to point out.

But arguing infringement based on the similarities of the labels and bottles is one thing, but can a suit be successfully brought over adding fruit juice to beer? Bud Light Lime may certainly be in the spotlight due in no small part to the amount of marketing hype thrown behind it, but the reality is that people have been diluting their beer with fruit juice since the Stone Age. Go to any pub and you'll find patrons ordering a side of lime juice, tomato juice or whatever in order to flavour their beer to taste. And it's traditional that you drink Corona with a slice of lime stuffed into the bottle. Given that, it's unsurprising that a brewer would decided to cater to the target market by adding the juice to the beer, and indeed many have done so in the past: it's a drink called a shandy.

Bearing that in mind, is it trademark infringement if a rival brewer jumps on the trend bandwagon and offers a competing lime-flavoured beer? To my non-lawyer thinking, Anheuser-Bush certainly owns the names "BUD" and "BUD LITE" in relation to drinks, but it's hard to believe that they can co-opt the word "lime."

Whether businesses know it or not, competition is good for business. Consider the veritable flood of energy drinks on the market in recent years. I don't doubt that originators like Red Bull are still doing well, even though now that there are hundreds of competing "me too" products.

As it happens, just last week Anheuser-Busch and Labatt backed down from its initial claims, withdrawing its strongest assertions against Brick Brewing's lime beer. But the legal battle has just begun, and Brick Brewing insists it will vigorously defend itself against what it's painting as a Goliath versus David scenario. It will be interesting to see what happens next.