Judge agrees with Molson Coors – “izzy” is indicative of “fizzy” and hard seltzers using it in their names should understand there will be others using it. Brizzy can’t stop Vizzy from getting to market. (Bonus: we’ve got the docs for you (and shout out to the attorney that included our article in Molson Coors’ appendix))
Molson Coors has prevailed over Future Proof in Future Proofs attempt to secure a preliminary injunction against Molson to prohibit Molson from producing its “Vizzy” branded hard seltzers on account of a likelihood of confusion with Future Proof’s “Brizzy” hard seltzers.
As we wrote back in February, for this lawsuit to have legs, a court would necessarily have to find that by calling a hard seltzer “Brizzy” the beverage company making the hard seltzer had secured for itself the entire market of “izzy” ending beverage names (potentially beyond hard seltzer, even) which would be nonsense in a category of beverages that can be described with the word “fizzy”.
Not only did the court agree that Brizzy hard seltzer maker Future Brands did not demonstrate a likelihood of success on the merits, it went deep into the likelihood of confusion analysis and questioned the notion of Brizzy having good protectable qualities given its derivation or use of portions of the word “fizzy” – “BRIZZY on the other hand, clearly stems from the word “fizzy,” which is certainly an adjective that a customer looking for a flavored, alcoholic seltzer product would desire.” It also found the existence of other izzy sounding marks in the drinks categories problematic for the plaintiff’s claims – “in fact, there exists a plethora of competing products humorously close to Plaintiff’s mark.”
In the opinion, the court also found that the differences in packaging played a part in the lack of a likelihood of confusion even though B and V in the names are similar letters — “the marks sound quite similar but look overwhelmingly different.”
Important to the alcoholic beverage space – the court noted that the proffered evidence of actual confusion – a wholesaler asking Brizzy hard seltzer manufacturer when its Vizzy product would be coming to market – was improper as wholesalers of alcoholic beverages bring products to consumers, so the wholesaler confusion is not evidence of consumer confusion.
It is no secret that we called this one for Molson Coors – you can read more about the dispute from our original piece on the hard seltzer trademark battle here. That fact wasn’t lost on the litigants as the attorneys for Molson Coors included our article in their appendix (with screen grab and full color copy of your favorite Chicago based alcoholic beverage regulatory attorney front and center).
You can read the court’s opinion in this hard seltzer trademark dispute here.
As for the briefs:
You can read Molson Coors response to the motion for an injunction here and check out their appendix to the brief here (note exhibit 13 – our original article on the dispute was included for some reason – Chicago liquor lawyers rejoice).
As for motions in the alcoholic beverage trademark dispute that haven’t been ruled on yet:
You can read the motion to dismiss that Molson Coors filed against the complaint in this hard seltzer trademark dispute here.