The Ninth Circuit heard argument on the trademark dispute that Jim Beam, the maker of “Pucker” flavored vodkas, won against a rival spirits brand that makes Johnny Love Vodka, JL Beverage Co. The vodka maker, through its liquor attorneys, wanted to overturn the District Court decision in an attempt to breath life back into its lawsuit.
The District Court had handed both parties something of a draw in determining that the Pucker lipstick mark did not infringe on the more realistic Johnny Love lipstick mark and that the Johnny Love mark shouldn’t be invalidated. In discussing the decision after a trial, the District Court had remarked:
“The Beam Lips Mark is far more stylized than the JL Lips Mark, which has naturalistic features including lip creases, and the absence of color in areas where the ‘lips’ did not make full contact with the bottle,”… “The Beam Lips Mark features solid lines and could never be mistaken for an actual lipstick print.”
Not satisfied, Johnny Love appealed the determination pushing to have the analysis of the similarity of the marks and other factors that led to the determination against JL Brands reviewed and overturned.
For those following issues of liability and damages in liquor trademark disputes, you’ll note the discussion between the judges and the alcohol company attorneys regarding the damages available when a competitor has stopped selling their alcoholic beverages or reduced sales before the allegedly infringing alcoholic beverage ramps up sales. You will also take pleasure in the discussion as to whether notice of a similar mark in a search then mandates some additional opinion that the marks are not similar or not infringing to circumvent a determination that beverage companies took an alcoholic beverage to market understanding the trademark was similar to a competing product.
You find audio of the oral argument here and you can also watch the oral argument at the 9th Circuit here (note that the argument starts with a liquor lawyer’s favorite question…):