To take Stone on face value, their claim is in earnest that:
“If MillerCoors succeeds in supplanting Stone’s craft beers with Keystone as “STONE” in the minds of consumers, Stone’s brand and trademark will be destroyed.”
But for MillerCoors part, the pragmatic narrative they’re attempting to lodged against Stone doesn’t pull any punches:
“Stone Brewing is failing keep pace [sic] in an ever more crowded craft beer segment and needed to revitalize its now-outdated image as an iconoclast. Stone Brewing’s market is increasingly populated by beers that are rated in official beer tastings as simply better than Stone Brewings’ “strong and unapologetically flavorful hops.” This lawsuit … was designed as a publicity stunt and … This lawsuit is the best publicity Stone Brewing has received in years.”
Many craft beer trademark practitioners will be familiar with both sides’ apparent agreement that consumers can be duped as it is premised on the opposite argument many make during response and appeal actions that craft beer consumers are discerning (you know, that argument that always gets rejected). From Stone’s Brief:
“Confusion is also likely because consumers do not exercise a high degree of care when buying beer. When it comes to beer and other alcoholic beverages, courts consistently have held that the degree of consumer care is low. Fleischmann Distilling Corp. 314 F.2d at 159–60 (the average consumer purchasing beer “would probably not concern himself about any such detail” such as who was “actually brewing and bottling” or “whether it was being produced under their supervision or pursuant to some other arrangement.”); Anheuser-Busch, 947 F. Supp. at 425 (“because beer is a relatively inexpensive product, consumers are not likely to use great care in selecting beer”); Guinness, 2002 WL 1543817, at *6 (“high end” beer and Scotch whiskey constitute “relatively low cost products, and the average consumer is not likely to seek to identify the true manufacturer of these products.”). Confirming these judicial assessments, both sides agree that consumers exercise a low degree of care when purchasing beer. MillerCoors’s proffered beer marketing expert Michael Kallenberger wrote in his report and testified that consumers buying beer “make quick decisions between brands” as they browse the beer aisle. (Hagey Ex. 23 at 186:23-187:2.) Stone’s marketing expert Brandon Hernández confirms that the “tendency for the public to generalize beer, coupled with the beverage’s relative low cost, renders it a consumable for which shoppers exercise less care when purchasing.” (Hernández Ex. 1 at 15-16.) Accordingly, there is no dispute that the degree of consumer care is low, favoring Stone.”
Having read both the (heavily redacted) briefs, I’ve got to admit that Stone has a good case, but if this comes out to deciding who is correct based on survey evidence of what a consumer would think, this may end up going to a trial for a determination of that fact.