Beer companies are notorious for their litigious ways and this summer has seen a continuation in the legal drama. In May 2009, beer giant Labatt Brewing Co. Ltd. launched a lawsuit against the Waterloo-based Brick Brewing Co. Ltd., regarding the similarity of the Brava and Red Baron bottles. Labatt, who acquired Brava in 2007 when it purchased Lakeport Brewing Co., had recently relaunched the brand in a clear bottle, featuring red, white and black as the dominant colours on the labels. Brick, after receiving a marketing grant from the province, decided to relaunch their Red Baron brand, which also comes in a clear bottle with black, white and red as the dominant colours on the label. Labatt sued for trademark and copyright infringement, claiming that the colours and design of Red Baron are so similar to Brava that confusion is occurring in the marketplace, causing some customers to mistakenly believe that Red Baron is a Labatt brand.
Labatt claims that even The Beer Store employees are confused as an unspecified number of Red Baron empties have apparently been sent to Labatt’s Brava bottle plant to be refilled. George Croft, president and chief executive of Brick Brewing, finds this hard to believe, largely because The Beer Store is partially owned by Labatt, but also because Brick pays the store a “sorting” fee to ensure its bottles are property returned. In mid-June, this lawsuit was settled “amicably” and under the agreement, Brick must change Red Baron’s label and secondary packaging in the near future.
Although that disagreement may be settled, just last week, Labatt and Brick Brewing geared up for another round of litigation. The lawsuit was once again launched by Labatt, this time claiming that Brick’s Red Baron Lime beer infringes the trademarks and copyrights of Labatt-owned Bud Light Lime. This time, Brick has apparently admitted that they launched their lime beer as a copy of Bud Light Lime after noticing that stores quickly sold out of Labatt’s product. Brick decided to capitalize on the opportunity this created, and rushed their launch of Red Baron lime in order to meet the demand for lime beer that was created by Bud Light Lime. Both Brick’s and Labatt’s version of the lime beer are sold in clear bottles with green and silver labels featuring a slice of lime, and this time, attention is also being drawn to the websites of Brick and Labatt’s lime beer, which both use green backgrounds and depict young, attractive, swimsuit-clad people gathered around a bottle of the brew. Labatt claims consumers are being misled into believing Red Baron Lime and Bud Light Lime are connected, and furthermore, seeks punitive damages of $500,000 because Brick shows a “pattern of conduct” of passing off its wares as those of other companies. Brick attempts to defend itself by saying that it doesn’t make sense to use a lime graphic without also using the colour green.
Professor Carys Craig, an associate professor at Osgoode Hall, speculates that Labatt may be making an aggressive move to claim ownership to a common symbol, and perceptively notes there are only so many ways to design a lime slice before it no longer looks like a lime. Moosehead Breweries and Big Rock Brewery, both Canadian companies, also launched lime beers this summer, but escaped the wrath of Labatt by using different coloured bottles and labels that are visually distinct from Bud Light Lime.
If this case does not settle, it could be years before it is resolved. Croft has stated that Labatt is “crazy” for thinking they can trademark a lime slice or the colour green, and that Brick is “not looking for a settlement” this time, but rather to take a stand against the beer giant. At this rate, it looks like this lawsuit will not end in an amicable settlement.
