IP Law Daily Denial of preliminary injunction over hard seltzer beverages not overturned
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Friday, December 4, 2020

Denial of preliminary injunction over hard seltzer beverages not overturned

By Brian Craig, J.D.

Because Future Proof failed to show a substantial likelihood of success on the merits, the district court properly denied a preliminary injunction to enjoin the sale of "Fizzy" sold by Molson Coors.

In a trademark infringement action brought by Future Proof Brands over its "Brizzy" hard seltzer beverage to enjoin the sale of a competing hard seltzer named "Fizzy" sold by Molson Coors Beverage Company, the U.S. Court of Appeals for the Fifth Circuit has affirmed the denial of a preliminary injunction request. Future Proof failed to show a substantial likelihood of success on the merits to support a preliminary injunction and the federal district court in Texas did not clearly err in evaluating the relevant likelihood of success factors on a trademark infringementclaim, the Fifth Circuit ruled. The Fifth Circuit concluded because the BRIZZY mark is suggestive and third parties also sell seltzers with a variation of the word "fizzy," the BRIZZY mark is weak. The Fifth Circuit also concluded that Future Proof failed to submit evidence of actual confusion that swayed consumer purchases, intent, or a lack of consumer care (Future Proof Brands LLC v. Molson Coors Beverage Co., December 3, 2020, Smith, J.).

Future Proof Brands and Molson Coors ("Coors") sell competing hard seltzer beverages. Hard seltzers are alcoholic beverages that contain carbonated water, alcohol, and often fruit flavors. Both companies named their hard seltzers with a variation of the word "fizzy." Future Proof named its seltzer "Brizzy." Coors chose "Vizzy." Future Proof sued Coors for trademark infringement, claiming that consumers would confuse Vizzy and Brizzy. The district court denied Future Proof’s motion for a preliminary injunction. Future Proof appealed.

Likelihood of success. To determine likelihood of success on a trademark-infringementclaim and to support a preliminary injunction, the Fifth Circuit considers the following factors: (1) the type of mark infringed, (2) the similarity between the marks, (3) the similarity of the products, (4) the identity of theretail outlets and purchasers, (5) the identity of the advertising media used,(6) the defendant’s intent, (7) evidence of actual confusion, and (8) thedegree of care exercised by potential purchasers. The Fifth Circuit labels these factors "digits of confusion."

Type of mark. The Fifth Circuit first agreed with the district court that the BRIZZY mark is weak. While the appeals court disagreed with the district court’s classification of BRIZZY as a descriptive mark, the Fifth Circuit agreed with the district court’s finding that the BRIZZY mark is weak. The Fifth Circuit found that the BRIZZY mark is suggestive. Suggestive marks—like descriptive marks—are comparatively weak. The Fifth Circuit also found significant evidence of third-party usage to support the conclusion that the BRIZZY mark is weak. Other products include Malibu’s "FIZZY PINK LEMONADE," Malibu’s "FIZZY MANGO" drink, "IZZE" sparkling juice, "FIZZY FOX" sparkling shrub, IGA’s "FIZZY" sparkling water, and Hubble’s "FIZZY JUICE" sparkling juice drink. Because BRIZZY is suggestive and there is significant evidence of third-party usage, the district court’s conclusion that BRIZZY is weak is not clearly erroneous.

Similarity. The district court did not err in concluding that the similarity in the marks only marginally weighs in favor of granting the injunction. The district court correctly noted several differences in product packaging, including different shapes and colors. The district court also properly considered the similar of sound between BRIZZY and FIZZY. But the Fifth Circuit observed that similarity of sound should not be placed on a "pedestal" in considering similarity.

Intent. The district did not err in concluding that the intent on the part of Coors does not support the injunction. Future Proof failed to submit evidence to support claims about Coors’s knowledge to establish bad faith and intent. Future Proof bears the burden of establishing a likelihood of success, and it failed to provide evidence of intent.

Actual confusion. The district court also correctly concluded that Future Proof failed to show actual confusion. While the Fifth Circuit found that the district court incorrectly concluded that wholesalers do not count as consumers, the Fifth Circuit agreed with the district court that one alleged isolated incident was not actual confusion, but instead a fleeting "mix-up." Actual confusion must be more than a fleeting mix-up of names and must show that the actual confusion swayed consumer purchases. A fleeting mix-up of names is insufficient to establish actual confusion.

Degree of care. The Fifth Circuit found no error by the district court in considering the degree of care exercised by potential purchasers. The court often relies on affidavits or testimony to show a lack of consumer care. Future Proof provided no such evidence.

Because Future Proof failed to show a substantial likelihood of success on the merits, the Fifth Circuit did not address the other three preliminary injunction factors. Finding no clear error by the district court, the Fifth Circuit affirmed the district court’s denial of a preliminary injunction.

This case is No. 20-50323.

Attorneys: Christopher John Schwegmann (Lynn Pinker Hurst & Schwegmann LLP) for Future Proof Brands LLC Mark Klapow (Crowell & Moring LLP) for Molson Coors Beverage Co. and MillerCoors LLC.

Companies: Future Proof Brands LLC; Molson Coors Beverage Co.; MillerCoors LLC

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