In case you’ve been hiding under a rock back in February of 2018 Stone Brewing sued MillerCoors arguing that the new MillerCoors design on Keystone cans infringed on Stone’s trademark and that MillerCoors was intentionally playing up the “STONE” in Keystone to confuse consumers. Take a look:
Here’s the complaint Stone filed.
In response MillerCoors answered that complaint and filed counterclaims of its own (link to answer and counterclaims). You can read the answer and counterclaims here.
On Tuesday a federal judge sided with MillerCoors on both issues (link to order). Refusing to Grant a preliminary injunction to Stone that would prohibit MillerCoors’ use of the new can design, and refusing to dismiss MillerCoors counterclaims against Stone allowing those to proceed – potentially to a trial.
Oddly, even though Stone got trounced and the judge wouldn’t even find that Stone had a likelihood of success on the merits in this case, Stone went on to issue a press release calling it a positive turn of events because of some language the court used in describing their claims… just before the court rejected their arguments …
At least two websites have written about this order, apparently solely based on Stone’s purported press release (I can’t find this press release on their website) with the headlines claiming Stone scored a win. Check out those articles here, and here.
That’s really not the case.
Let’s be clear. The standard for winning a preliminary injunction involves a multi-factored analysis, one of which is whether you have a likelihood of success on the merits of your lawsuit (the court wouldn’t find that for Stone here). Also, the court found Stone was hard-pressed to demonstrate it would suffer any harm absent a preliminary injunction. Holding that Stone fell far short of demonstrating it would suffer such harm. The court also viewed Stone’s evidence and surveys regarding actual consumer confusion in an unfavorable light:
“Miller contends that Stewart’s [Stone’s expert] survey is flawed because it fails to use actual images and typical Keystone packaging that was available for commercial purchase and subsequently photographed for use conducting the survey. … Miller commissioned Hal Poret (“Poret”), an expert who has conducted more than 1,000 surveys on consumer perceptions and opinions, to review Stewart’s survey and to conduct its own study to determine consumer confusion…. Following Stewart’s methodology, but using actual accurate and typical representations of the Keystone can and packaging, Poret redid the survey, finding that not only did the level of consumer confusion drop, in some cases, showed no likelihood of consumer confusion at all. … Such results are either neutral or slightly favor Miller.”
“Next, Stone also offered what it called “actual consumer statements of confusion.”…The proffered consumer statements offered little more than conjecture and no support to Stone’s claims of consumer confusion. Even assuming the statements were valid, a tweet showing a picture of a beer truck trailer with one of the doors rolled up (likely due to the driver making a delivery) so that the Miller product displayed on the side reflects “Stone” instead of “Keystone” is irrelevant and offers no support to a determination of consumer confusion.”
Taken as a whole, the court’s order should give anyone in Stone’s shoes some trepidation about proceeding without better evidence of consumer confusion.