Whisky Dispute Poses an Interesting Question About Comparative Advertising Limits

Just how far can you
go in a commercial pitting your product against a competitor’s?  We may be set to find out soon.

Yesterday a federal judge
entered a scheduling order setting an introductory timeline in a comparative
advertising case between the makers of Crown
Royal
and Texas Crown Club
whiskies.

The dispute arises
over a commercial promoting Texas Crown Club where a cowboy walks into a bar
(stop me if you’ve heard this one before) and gets insulted for apparently
trying to quench his hankering for a whisky with something in the little purple
bag Crown Royal uses to market itself.  Along
with a camera-shot of the purple bag in the hand of the cowboy, a lady at the
bar is heard to remark “We don’t drink that poison in this neck of the woods.”

In true cliché fashion,
the cowboy is tossed from the bar followed by footage of the Texas Crown Club
bottle next to a bag resembling the current Texas flag.

Upset with the
commercial and the implication about “poison”, Crown Royal’s maker, Diageo, filed this
complaint
against Mexcor, Inc., the maker
of Texas Crown.  While a portion of the
complaint deals with trademark dilution, the central allegation relative to the
advertising question comes under the guise of claiming that the statement about
“poison” was meant to have at least some literal import:

By characterizing
CROWN ROYAL whisky as “poison,” Defendant is falsely and misleadingly
advertising, through literal statements and by necessary implication, that
CROWN ROYAL whisky is a harmful, unsafe, and substandard product, that CROWN
ROYAL whisky is inferior to TEXAS CROWN CLUB whisky, that CROWN ROYAL whisky is
an inappropriate drink for Texans, or simply that CROWN ROYAL whisky tastes
bad. Such advertising violates 15 U.S.C. § 1125(a).

We’d love to show you the commercials to let you decide
what you think about all this, but the links to the commercial in the complaint
that were previously available on Youtube have been taken down.  We will keep you posted on the developments
here as they may end up having broad-reaching implications for comparative
advertising.