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Discussion in 'Beer News' started by BorisKarloff, Jun 6, 2013.
If you wish, yes, this case was only relevant to those who cannot discern color or patterns.
AB In-Bev is a publicly traded company and a large amount of their stock is owned by Americans. So yes, they increase our GDP, improve our home values and make America better. The stock has actually been doing OK, might be a worthwhile investment considering their recent purchase of Modelo gives them more control of distribution around the country.
please tell me that the fact that there was a "legal case", standing alone, doesn't mean, to you, that either party's position--EITHER party's position, I'm not taking sides here--had any merit whatsoever. Because meritless positions are taken by lawyers every day, and this case didn't even get to summary judgment motions as far as I am aware.
There is a way to determine relative merit. Look at where the parties ended up, vs a) where they started and b) where they were at the last exchange of settlement proposals before the litigation was filed. Who got closer to what they wanted?
Yeah, the color isn't all that important. One could very easily see the W6 logo as an upside-down version of the Magic Hat #9 symbol, hence why MH simply wanted the star removed. To say they aren't at all similar is to be purposely dense, and shows total ignorance about trademark law and the importance of defending one's trademarks.
I'm sorry, but if someone is dumb enough to buy a six pack of West Sixth beer, mistaking it for Magic Hat, they're not going to notice the removal of a small star in the logo, and suddenly realize they're buying the wrong product.
Adding on to what reverseapachemaster said earlier too, legally speaking, not defending your trademark is the same as abandoning your trademark. So while it seems totally effing ret...uh...stupid to normal people, from a legal standpoint if they didn't challenge it, it could be seen as giving everyone else the right to use anything about #9 that they wanted just because they had been reasonable and not sued for infringement.
Let's say you have never heard of W6 before and you struck their name off of the can. If you went around and asked people what brewery probably produced that packaging, what would a lot of people's guess be?
If the breweries have gotten over it, can't we now???
I wouldnt say "controlling". From doing the math on that chart, and guessing at some points where arrows werent numbered, he owns (indirectly) about 25%. Damn close to controlling though.
I guess I'd see your point if I bought beer standing on my head. But what we have here is a brewery with distribution to 37 states going after a brewery with distribution in 2 states because someone thinks the logos could be confused. What the f%$& was Magic Hat worried about? Does this mean that Magic Hat is going to go after anyone who uses the number 6 on their labels? Last time I checked, all 6s looked like upside down 9s and all 9s looked like upside down 6s. Is Magic Hat going to go after Sixpoint because they have a star on their label? The cost of beer is high enough without having to support frivolous litigation [and don't think for a minute that somehow some of the costs aren't going to be passed on.]
You only have to defend it against people who are infringing your trademark. If W6 wasnt infringing, MH has no need to defend it to protect it.
This settlement probably strengthens their protection against 8 pointed stars, but may weaken their protection against numerals in a circle.
The first time I saw their tap handle, I asked. I was told West Sixth, who I had heard of but hadnt yet seen. I never thought Magic Hat, I assume because it wasnt psychedelic like all other Magic Hat logos.
2 states, I think. They said they are now in Cincy.
Well since they were bought out, everyone knows its a Nueve not a Nine!
OK I changed the post to "2 states".
I live in Vermont, but I'm not a Magic Hat fan, at all. Still, you know whoever created the logo looked at the Magic Hat number 9 logo.
Personally, I don't care, but the guy at West Sixth seems like a total douchebag.
You're on the right track, but Magic Hat's customers are still not going to be your standard BMC consumers.
Obviously, they probably aren't targeting BAs, but people who buy Magic Hat have enough interest in their beer to be able to tell the difference between these two mostly different logos.
I really wish this would have gone to court, because I would have LOVED to hear a copyright judge's ruling on the whole Likelihood of Confusion issue. It seems like the reason it was resolved out of court is partially West Sixth's own fault--by waging their PR campaign against Magic Hat, they provoked Magic Hat enough to amend their lawsuit to include slander and defamation, which are two charges that would have had a much easier time of sticking.
But I still maintain that a copyright judge would have likely ruled in West Sixth's favor. Goes to show you that waging a PR battle can bite you in the ass sometimes.
I made the assumption that if the public owns about 47% that leaves about 53% and then doing something similar to you I determined that he had the largest individual stake. You don't need to own 51% to have a controlling stake you just need to own more than every other individual / company. At any rate this entire exercise has been way off topic. I just found it interesting so I thought I would share some useless knowledge.
Me too: interesting and useless is cool. Having the largest individual stake isnt quite enough if everyone else votes against you.
This is an excellent point about relative merit. And I think if you go back and read Magic Hat's initial demands (whether or not they thought those demands were reasonable or not is another story), they are much farther from what they wanted than West Sixth is.
The funniest part, to me, is that in Magic Hat's trademark application, the little starburst that apparently became the resolution point on this whole case, isn't even part of the application. The only trademark right Magic Hat has to that little starburst is by Common Law.
Of course, as I said to someone earlier, I think West Sixth really ended up shooting themselves in the foot with the PR campaign, because it provoked Magic Hat enough to add defamation to the suit, and that one seems like it would have been MUCH easier to win. West Sixth had to concede the star because they probably didn't think they could defeat the defamation suit. That being said, I suppose the question is--would Magic Hat have conceded to such a small change in the West Sixth logo if they hadn't felt the heat of the interwebz roasting them for going after a tiny little Kentucky brewery?
So how long until Founder sues TG? Clearly Kentucky Brunch Breakfast Stout (which doesn't make sense anyway) was named to take advantage of the success of KBS. I would say that TG should have named it Kentucky Brunch or Kentucky Brunch Oatmeal Stout but I would still argue that the entire premise of Kentucky Brunch too closely resembles Kentucky Breakfast and therefore shouldn't be allowed.
You could be dense, but not on purpose. But you would have to be really dense one way or the other.
The W 6th owner was an accomplished social media maven before all this & exploited this situation for all it was worth. People need to remember this the next time they claim "craft" breweries don't engage in marketing...they've received more free PR pub than can possibly be imagined because of this, with minimal effect to their bottom line. Perhaps next time they can pay for exposure like other businesses.
To me its seems W6 got out of this with the easiest change possible. And all the bluster about fonts and inverted nines and similar circles and etc was just that. Magic Hat quickly dropped those. Probably the settlement is good for both, Magic Hat can claim victory, they forced a change. West Sixth saved on legal fees with a basically no-cost change (assuming they are allowed to deplete their current supplies).
I would tend to agree. The final net value of the whole exchange comes down to "compass/star" vs. "legal fees".
On principle it's probably annoying to WS that they had to drop the star, but I think if you asked them, they would prefer dropping the star to paying the fees to win the right to keep it.
Insofar as Wall Street analysis goes, for any company with revenues in excess of $10 billion (of which InBev is WAY past that), a 7% ownership interest IS a controlling interest.
Huh, thats cool. A company with 14 different controlling interests would be unlikely but possible in that case. Not my definition of controlling.
That's why there are labels in the first place, so people don't have to guess who made stuff.
Maybe 12oz didnt want to get too close
Oh, yeah, makes a huge difference. Definitely worth all the bad publicity Magic Hat...good job.
Protecting one's trademark can be dirty business...
Magic Hat's theory before the court would not be based on what it's customers would distinguish but what a new, unsuspecting customer might perceive.
I'm an intellectual property lawyer (who doesn't do much with trademarks and drinks too much beer) and thought this was interesting. Here's my guess.
Confusion trials can be very expensive and West Sixth realized they didn't have enough money to fight the trademark suit, so they tried a collateral attack through social media. West Sixth probably (and stupidly) didn't realize they would also get sued for that.
After the internets went nuts over the West Sixth story, Magic Hat realized that even if they won both the trademark and defamation claims, it would be years later and lots of people would have been pissed. So Magic Hat might have done more harm to the brand by continuing to fight this issue.
Now both sides realize they are screwed by going to trial, and both really need to settle and save some face. West Sixth needs to settle because win or lose the trademark claim, they'll be broke; and they now also have to fight the defamation claim (and pay additional lawyers). Magic Hat needs to settle before they take more of a PR hit, but Magic Hat needs some sort of "change" by West Sixth to save face and also needs West Sixth to shut the F up. West Sixth realizes that dropping the star/compass won't hurt their label or brand at all, and takes their lumps by accepting the gag order.
Looking at the end result, I cannot imagine that Magic Hat would have initially been happy with this tiny change to the logo, but they didn't realize that people might not see this just another business suing a competitor. West Sixth looks foolish to anyone that saw Magic Hat's response and then hears that they had to change their logo, but West Sixth is better off than it would have been if it went to trial.
Now 21st Amendment can go sue Straight To Ale for the astro-monkey thing, I guess. Smuttynose and Sea Dog can strip to the waist and bare-knuckle it out over the rights to having a dog on the label. Lagunitas gets dibs on the winner for the championship bout. Anyone from The Beatles' estate think to sue Magic Hat, btw? Number 9... Number 9... Number 9... etc.
Because someone just might be travelling through Kentucky and stop for lunch, spot this beer and get totally confused when the liquid that comes out of it actually tastes good. "What the hey? This isn't Magic Hat!"
Maybe one of the other hyperbolic people above can sue you for using tangential arguments
Sombrero Magico Numero Nueve
Fixed it for you.
Yes, I understand that. But my point is that when claiming that there is Likelihood of Confusion, you have to take into account your likely target customer.
When I said "Magic Hat's customers", I meant "Magic Hat's likely target market", not their actual, existing customer base. My point was that your typical BMC consumer is not Magic Hat's target market.
It's called a sense of humor. Try one out sometime, dude.