MillerCoors has appealed the trial court’s May 24, injunction granting it partial relief on the beer advertising suit surrounding the Super Bowl and related advertising Anheuser-Busch has pursued in the game’s wake. You can read that trial court opinion here. In short, the injunction granted partial relief to MillerCoors and instructed Anheuser to top using the following statements in advertising, including social media:
- Bud Light contains “100% less corn syrup”;
- Bud Light in direct reference to “no corn syrup” without any reference to “brewed with,” “made with” or “uses”;
- Miller Lite and/or Coors Light and “corn syrup” without including any reference to “brewed with,” “made with” or “uses”; and
- Describing “corn syrup” as an ingredient “in” the finished product.
MillerCoors took issue with the ruling because the court did not decide the questions of:
- Whether the finding of a deceptive intent in the beer advertisements gives rise to a rebuttable presumption of confusion and injury under the Lanham Act;
- Whether the court erred in not further enjoining more statements regarding corn syrup such as assertions that Miller Lite and Coors Light are “made with,” “brewed with,” or “use” syrup in holding that they are “susceptible to misunderstanding” rather than misleading;
The ambiguous statements are the thrust of this appeal. The court’s failure to further enjoin them gave rise to the following introduction from MillerCoors:
AB’s plan is deceptive because many of the statements it chose are purposefully ambiguous. In one possible sense they are true: Miller Lite and Coors Light are “made with,” “brewed with,” and “use” corn syrup, but only as a fermentation aid. But in the critical, most obvious sense—that these beers contain corn syrup—they are undeniably false. Neither beer contains corn syrup. And here, as the district court found, AB intended consumers to understand its ambiguous words in this second, false sense.
AB put its plan into action with a campaign that elided these ambiguous phrases with clearly false ones, telling consumers (for example) that Bud Light has “100% less corn syrup” than Miller Lite and Coors Light. The district court correctly found that those statements falsely and misleadingly imply that Miller Lite and Coors Light contain corn syrup, and enjoined them accordingly. But the court did not enjoin the adjacent ambiguous statements, focusing only on one narrow, hyper-technical meaning and finding them non-actionable on that basis.
At the trial court level, the pending question of what advertising on the actual packaging for Bud Light might get enjoined is fully briefed and awaiting the court’s decision, which could give rise to another appeal, or could be determined in a broader 7th Circuit ruling.
You can find the brief here, and the appendix with the documents and the transcripts of the argument here. We’ll continue to post the briefs as the rest become available.
An interesting question here will be separating the ad campaign from individual ads. As some individual ads just use the terminology that was not enjoined and it would only be that taken in conjunction with the other, enjoined ads and the Bud Light beer advertising campaign as a whole, that the finding of a deceptive intent in those ads could be imputed as misleading rather than the “misunderstanding” the court inferred. If the full campaign’s intent is imputed and these terms standing alone are found to be misleading as part of the greater whole, beer companies will have notice that the full ambit of ads they pursue are fair context for Lanham Act and other false advertising claims.
Note: as a grammatical footnote to the brief, MillerCoors has put everyone on notice (see page 1, footnote 1) that as a matter of company policy, MillerCoors forms the possessive of its name without an apostrophe. We’ll oblige their idiosyncratic grammatical prerogative as it proves their out to save the world by reducing the need for data and ink.