Brewers lock horns over deer trademark. BUCK BAIT v. BELLS BREWERY

Trademark law is intended to protect consumers from being tricked into buying inferior quality goods. A trademark is something that a manufacturer uses to brand its products. Traditionally a trademark is considered a word phrase or symbol, but anything that signals to consumers the identity of the product manufacturer can be eligible for trademark protection. The first user of a trademark is referred to as the senior user, subsequent users are called junior users. Trademark law grants the senior user a trademark owner the exclusive right to brand its products with a trademark. If someone other than the trademark owner starts branding products with a trademark in a way that is likely to cause consumer confusion, that can be considered trademark infringement.

The key issue in trademark infringement is likelihood of consumer confusion. If the use of a trademark causes consumers to be confused about who produced a product that can be trademark infringement. When determining likelihood of confusion, courts review several factors, referred to as Polaroid factors, after the court case which introduced them. Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961). Each circuit in the United States federal court system has a slightly different set of factors but the principles are essentially the same. The factors are: (1) Strength of the senior user’s mark, (2) Similarity of the marks, (3) Similarity of the products or services, (4) Likelihood that the senior user will expand their product line into the junior user’s product line, (5) The junior user’s intent in adopting the mark, (6) Evidence of actual confusion, (7) Sophistication of the buyers, and (8) Quality of the junior user’s products or services.

Two trademarks do not need to be identical for trademark infringement to occur. The purpose of the Polaroid factors is to give courts an objective test to determine when there is a likelihood of consumer confusion between two mark. Sometimes two trademarks can be similar and a court will decline to find trademark infringement has occurred.

BUCK BAITS LLC v. BELL’S BREWERY, INC., 1:20-cv-00049 (W.D.MI 2019) involves two different companies that both want to use the trademark DEER CAMP to brand their products. The plaintiff in this case first started using the trademark DEER CAMP to brand its coffee products in 2015. The plaintiff successfully registered its claim to the trademark in September 2016, Registration number 5035248. A representation of the plaintiff’s trademark appears above on the left. The plaintiff has also expanded the use of its DEER CAMP trademark into coffee infused craft beer products.

The defendant is one of the oldest craft beer breweries in Michigan and one of the largest independently owned craft breweries. In October 2017 the defendant filed a trademark application with the USPTO for its own claim to the DEER CAMP trademark. The USPTO refused to register the defendant’s trademark, based on Trademark Act Section 2(d), because of the likelihood of confusion with the plaintiff’s registration. The defendant did not respond to the office action and the application wa deemed abandoned in July 2018. Despite the USPTO’s refusal the defendant began selling products using its version of the DEER CAMP trademark, which is reproduced above on the right.

The plaintiff took exception to the defendant’s continued use of the DEER CAMP trademark and filed a complaint for trademark infringement. In its complaint the plaintiff notes that there is a strong likelihood of confusion because of the similarities between the customer base of both parties; namely, hunters. In fact some friends of the plaintiff bought the defendant’s beer because they believed that it was produced by the plaintiff.

The plaintiff has a strong case. While the USPTO’s refusal to register the defendant’s trademark does not guarantee a court will make the same conclusion, it is a strong signal that the Polaroid factors weigh in favor of the plaintiff. The defendant will be given an opportunity to respond to the complaint in its answer.

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