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MillerCoors alleges that Anheuser-Busch tv ads (which debuted on the Super Bowl) deceive consumers into believing that MILLER LITE or COORS LIGHT contain corn syrup (specifically, high-fructose corn syrup). Attached below are MillerCoors’ brief in support of its motion for a preliminary injunction, and the report of its expert, discussing his study that concludes that the commercials trigger negative sentiment as to MillerCoors and to corn syrup.

[embeddoc url=”https://www.schwimmerlegal.com/wp-content/uploads/sites/833/2019/04/corn-syrup-prelim-brief-1-1.pdf” download=”all”] [embeddoc url=”https://www.schwimmerlegal.com/wp-content/uploads/sites/833/2019/04/corn-syrup-expert-reprot-1.pdf” download=”all”]

There, I said it.

Coverage on knock-off Super Bowl merchandise here and here.

Discussion of ambush marketing in relation to Super Bowl here and here.

Example of advertising which refers to “the game on Sunday” without using the term Super Bowl here.

While you’re watching the big game on Sunday, don’t forget during the slow parts to check The Trademark Blog for late-breaking trademark developments.  The Super Bowl is the Offiicial Profesional Football Championship of The Trademark Blog.

Discussion of not-shown Super Bowl ads here.  At this point I think GoDaddy may be ahead of the game.

 

https://youtu.be/aYeXldMEpV8

Spuds McKenzie was a fictional dog character who appeared in Super Bowl commercials for BUD LIGHT in the late 80’s.  Trading on his reputation as The Original Party Animal, success came easy to Spuds and he reveled in the glamour and adulation.  But soon scandal caught up to him.  First, it was revealed that he was actually a female dog, which apparently was scandalous.  Then Spuds violated Ohio State law for appearing in an advertisement for alcohol, dressed as Santa.  Click the link if you don’t believe me. Then Senator Strom Thurmond argued that Spuds was intended to get children interested in alcohol.

Tired of the bad press, Anheuser Busch exercised the morality clause in its contract and fired Spuds in 1989. Spuds was last seen on an animated episode of Celebrity Rehab with Dr. Drew, appearing with Chester Cheetah, Joe Camel and the polar bear from the Coke commercials.

Plaintiff specializes in ‘re-claiming’ brands that had been, in its view, abandoned by the original owners. Brands that it has revived include AIWA, COLECO and BRIM.  It filed an application for SPUDS MacKENZIE for various pet products in 2013, and obtained a trademark registration.

In February, Bud brought back Spuds in a Super Bowl commercial entitled ‘Ghost Spuds.’  However, as Fitzgerald would say, there are no second acts in American dogs’ lives, and plaintiff has sued.

Sort of wonder about the copyright aspect to this.

[embeddoc url=”https://www.schwimmerlegal.com/wp-content/uploads/sites/833/2017/03/spuds-complaint-1.pdf”]

jewel osco ad

Time’s up from yesterday’s post.

Jewel ran the above ad in a commemorative issue of Sports Illustrated, without the authorization of Michael Jordan. MJ sues. MJ concedes that if the ad is held to be non-commercial speech, then his various claims fail. The Court, interestingly, says that it’s not so sure that’s correct (page 10) but that was the concession, so there you go. The question is therefore, is this ad commercial speech (and therefore entitled to a lowel level of First Amendment protections.

Held: Give me a break. Why did Jewel run the ad?

We don’t doubt that Jewel’s tribute was in a certain sense public-spirited. We only recognize the obvious: that jewel had something to gain by conspicuously joining the chorus of congratulations on the much-anticipated occasion of Jordan’s induction into the Basketball Hall of Fame. Jewel’s ad is commercial speech. (p. 20)

Accordingly, motion in favor of defendant was reversed, and the suit returns to the District Court to determine if there is a valid false endorsement claim. That should be an interesting question as well. If you are flipping through a special issue of SI, and every single ad says ‘Congratulations, Mike’ ‘Congratulations, Mike’, etc, do you believe that MJ authorized each ad, or merely that every advertiser paid SI so that they could get some beneficial glow?

Every year I run the same gag on Super Bowl Sunday: in order to avoid a false endorsement claim, rather than suggest that the NFL endorses me, I say “The Super Bowl is the official professional football championship of The Trademark Blog.” I am not deterred by this decision.

jordan v jewel food.pdf

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