Bud Light wins creative advertising row! Molson Coors and Anheuser-Busch corn syrup lawsuit put to rest in terse and certain terms: “Litigation should not be a substitute for competition in the market.”
The 7th Circuit wasted no time in publishing its opinion in favor of Anheuser-Busch’s defense of its “not made with corn syrup” advertising campaign that reached new heights in Super Bowl advertising fame by drawing a lawsuit from competitor MillerCoors (now Molson Coors) following a “game on” style text exchange between marketing pros right after the commercials aired and following initial claims by the maker of Coors Light and Miller Lite that the advertisements had not impacted profits (claims belied by assertions made in court filings).
With a hint of derision, the Court’s short opinion spends more time describing the dispute and the procedural folly resulting in a prior argument and remand than in telling Molson Coors that it cannot claim a substance is an ingredient and then pursue claims against a competitor for pointing out that it is an ingredient:
“By choosing a word such as “ingredients” with multiple potential meanings, Molson Coors brought this problem on itself. It is enough for us to hold that it is not “false or misleading” (§1125(a)(1)) for a seller to say or imply, of a business rival, something that the rival says about itself. Whether that “something” is good because it improves flavor (Miller and Coors’s take) or bad (Bud’s) is for consumers rather than the judiciary to decide. If Molson Coors does not like the sneering tone of Anheuser-Busch’s ads, it can mock Bud Light in return. Litigation should not be a substitute for competition in the market.”
The opinion dismisses Molson Coors’ contention that the case is complex because a competitor’s use of true information to create a misleading impression can give rise to claims under the Lanham Act by pointing to Molson Coors own identification of Corn Syrup as an “ingredient” and finding that consumer confusion between whether ingredient means that the final product contains the listed items or whether it means the product is made with the listed items is not enough where a common understanding of the word “ingredients” is that the product contains the the listed items and while the advertising campaign may have inferred the “contains” meaning – the Bud Light advertisements never used the word “contains.”
For those of you keeping a scorecard – the Court reversed the injunction against Bud Light’s packaging and advertising, and vacated the injunction against Bud Light using the word “contains” finding that because Anheuser-Busch had never used the word “contains” in referring to Miller Lite or Coors Light and corn syrup, and since it had no intention of doing so, the injunction was advisory.
Interestingly, a web link to the Molson Coors site that was published in the opinion appears to have been taken down. The PDF cited in the brief has been removed from Molson Coors’ website, but the citation mimics this information that had been available back around the beginning of the lawsuit and before where the maker of Coors and Miller listed “Corn Syrup (Dextrose)” as an “Ingredient” on its website:
So, cheers to Judge Easterbrook. Let the beer wars continue in the marketplace and not in the courtroom.