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Challenge to lime beer lawsuit on tap

|Written By Kelly Harris

Ontario’s Brick Brewing Co. Ltd. vows to challenge a copyright infringement suit brought against it by the world’s largest brewer, claiming similarities in their lime beer products. 

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Anheuser-Busch Companies Inc. and Labatt Brewing Co. Ltd. brought the suit for similarities in the packaging and marketing of Red Baron Lime to their own product Bud Light Lime. The suit claims Brick’s marks and art infringe copyright, and “create a likelihood of confusion.”

“Brick’s use of them has led, and is likely to lead, distributors, purchasers, and consumers of beer in Canada to infer that the Red Baron Lime beer brewed and sold in Canada by Brick is associated with, affiliated with, endorsed by, sponsored by, authorized by, licensed by or in some way connected to [Anheuser-Busch],” said the statement of claim filed by Heenan Blaikie LLP partner Andrea Rush and associate Matthew Diskin, on behalf of the brewing giant.

The claim also cites such similarities as using a lime wedge, the green web site background, and having semi-clad, swimsuit-wearing youth promoting their beer. Andrew McIntosh, a patent and trademark lawyer with Belmore McIntosh Neidrauer LLP in Toronto, who is acting on behalf of Brick says, “there can be no confusion” between the products.

“What Labatt and Anheuser-Busch are complaining about is essentially they are trying to claim proprietary rights in the colour scheme of green and white and an image of a lime in association with a lime-flavoured beer,” he says.

“Brick would say that is not distinctive of Labatt and many companies have in the past and currently market lime-flavoured products.”

McIntosh says Brick will be challenging the statement of claim prior to the Sept. 30 deadline to respond to the action.

Brick president and chief executive officer George Croft responded to the statement of claim by calling it a not unexpected nuisance suit, saying “it is a standard tactic used by large breweries worldwide to eradicate all competition regardless of a brewer's size.”

However, the suit may be far from simply a nuisance. Brick has previously tussled with Labatt over packaging.

In June, it settled with the brewery giant after Labatt claimed packaging of Red Baron was too similar to its product Brahma. So similar in fact, Beer Store employees in Ontario were giving the wrong beverage to customers. Brick agreed to change the labelling on its packaging.

In the lime case, Labatt’s parent company is claiming the Brick product is a sub-par imitation and will ultimately hurt the marketability of Bud Light Lime. The suit is calling for a halt of advertising in its present form, a percentage of the profits from product sales thus far, and $500,000 in punitive damages.

Ron Dimock, a partner with intellectual property firm Dimock Stratton LLP in Toronto, says while he cannot speak directly to the case, he does say the effect one product can have on another in the marketplace is a standard complaint in intellectual property suits.

“The expression that is used in a case like this is ‘depreciating the goodwill,’” he says. “The trademark associated with a particular service or good, or beer, in this case, or drink or beverages or whatever you want to call it so it is that depreciation of good will or the devaluation of good will, that is one way of looking at it.”

Dimock says there are other ways to damage goodwill including directing attention in a way to cause confusion.  

“Then you have other sections of the act that deals specifically with infringement of a trademark,” he says. “Where the use of the actual mark is registered or it is deemed infringement where you are using a trademark which is confusingly similar to the mark as registered, there is also a further provision in the act that allows someone to bring an action for use of a trademark in such a manor that has an effect of depreciating the value of the good will attaching to the registered trademark.”

Interestingly, the lime beer market has become somewhat crowded this summer. In now includes lime versions of Bud Light, Red Baron, Moosehead, and Calgary brewer Big Rock.

McIntosh says the Brick suit is the only one he is aware of.

Heenan Blaikie lawyers could not be reached for comment.


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