From the brief Anheuser-Busch just filed responding to MillerCoors lawsuit:
While the Super Bowl was still being played, MillerCoors’ Chief Communications Officer texted AB Vice President of Communications, stating “Game on,” “I love this stuff,” and “See you on the battlefield.”
Here are the texts:
Also, the next morning, MillerCoors Chief Communications Officer texted AB’s VP of Legal Affairs with the following:
Texts from MillerCoors and Anheuser comm to legalYou would be hard pressed to find better proof that this lawsuit lacks merit and is just another grab at media attention. But, it turns out there’s more… in case you hadn’t noticed, and as Bud-Light points out in its response, MillerCoors lists “Corn Syrup” as ingredients in Coors LIght and Miller Lite.
Here are the screenshots:
Description from MillerCoors Website for Miller Lite
Description from MillerCoors website about Coors LightAlso, if you’re at all interested in the fact that this means MillerCoors lawsuit is basically saying “Hey, please stop drawing attention to something we openly say but don’t want to make a big deal about” – check out the Nutritional Information from MillerCoors website, in this PDF (starting on page 11 of the declaration) you’ll see that “Corn Syrup” was listed on the version from 12/18/2018 and then MillerCoors updated the entire nutritional information PDF to clarify that they did not mean “high fructose corn syrup” on this version updated 04/01/2019.
This should make the decision regarding the injunction straightforward for the court. The case law here definitely favors Anheuser and it is absurd for MillerCoors to base a Lanham Act claim on the same language MillerCoors uses in its materials.
Some interesting things from the briefs below:
- As anticipated, the argument is that the advertisements that Bud Light is “not” brewed with corn syrup is truthful and accurate – and accurately describe the ingredients of Miller Lite and Coors Light.
- Bud Light has never disparaged corn syrup, suggested that corn syrup is “in the finished product,” or even mentioned the words “high fructose corn syrup” (“HFCS”). Rather, building its campaign around its medieval theme allowed Bud Light to communicate the ingredients in a truthful and clear manner – but also in a whimsical, fantastical way.
- Despite their lawsuit claims that they’ve suffered irreparable harm, MillerCoors continues to say publicly that the Bud Light ads have not impacted their market share.
- If it comes down to alleged confusion over whether HFCS is used, you should check out Anheuser’s expert report – and their arguments regarding MillerCoors claims of social media evidence as AB’s arguments are well constructed refutations of standard arguments made by many counsel when hoping to push a case into “plausible” land by citing tweets and posts.
The latest court order says that the next step might be an oral argument in May, but it is unlikely MillerCoors will let this latest round of briefs just go without trying to respond.
Here are the documents in the latest filing:
The motion to dismiss the complaint.
The memorandum in support of the motion to dismiss.
The proposed findings of fact from AB.
The expert report from Dr. Hauser challenging MillerCoors expert’s conclusions and methodology.
The brief in opposition to the preliminary injunction motion.
The declaration with attached advertisements and transcripts of the commercials.
The declaration regarding the survey results and information provided from MillerCoors to AB.
The declaration of AB’s raw materials VP claiming rice is more expensive than corn grits and corn syrup.
The declaration of AB’s VP of Communications about the texts.
The declaration of AB’s VP of Legal Affairs about the texts.