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
and Texas Crown Club

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
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

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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