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Wine and Spirits Are not Always Confusingly Similar

Brand litigation can be extreme in the consumer products space and even more so for alcoholic beverages (legal cannabis brand owners take note and start stockpiling your war chest).  It’s not uncommon for litigation to arise whenever an alcoholic beverage brand owner believes that another alcoholic beverage brand infringes.  Such was the case for Sazerac Company, the maker of the high quality bourbon BUFFALO TRACE.  Sazerac became concerned that Fetzer Vineyards’ use of a buffalo design and the word “bourbon” on a wine label would cause consumer confusion. In its complaint Sazerac alleged that:Fetzer Buffalo Design and Trade Dress are confusingly similar to Sazerac’s BUFFALO Marks and BUFFALO TRACE Trade Dress.  Each of the 1000 Stories’ bottles prominently features the Fetzer Buffalo Design, which is a sketched rendering of a standing, left-facing, fur-covered buffalo, similar to the Buffalo Logo and Buffalo Outline displayed on Sazerac’s BUFFALO TRACE product packaging.  In addition to this confusingly similar representation of a buffalo, the bottle text prominently reads “AGED IN BOURBON BARRELS,” and the website marketing specifically references the wine’s aging process in bourbon barrels from “famed distilleries,” tacitly suggesting an association with such distilleries.  It is readily apparent that Defendant chose the illustration and particular artistic stylization of a Buffalo to create a false association with Sazerac’s BUFFALO TRACE brand.

Sazerac alleged in its complaint that theirs and Fetzer’s wine would be sold in the same commercial channels – “Sazerac’s BUFFALO TRACE product and Defendant’s 1000 Stories product are competing, or will compete, in identical retail outlets – for example, wine and liquor stores, bars, restaurants, and online retail sites” – and be marketed to the same group of consumers – “Defendant, like Sazerac, markets its 1000 Stories product to adult consumers and adult purchasers of alcoholic beverage products.”Lastly, the court noted that purchasers of premium alcoholic beverages tend to exercise a high degree of sophistication and care when making their purchasing decisions and cited to the 2005 Second Circuit case of Star Indus., Inc. v. Bacardi & Co. for the authority that “Unhurried consumers in the relaxed environment of the liquor store, making decisions about $12 to $24 purchases, may be expected to exhibit sufficient sophistication to distinguish between Star’s and Bacardi’s products, which are differently labeled.”  Given a $14 price point for Fetzer’s wine, the court found that “[p]urchasers of a premium red zinfandel, therefore, are expected to exercise a high degree of care and are not likely to make mistakes as to a product’s sponsorship or affiliation.

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