Fizzy… oops, I mean Brizzy, hard seltzer maker files opening brief in appeal of trademark injunction ruling in favor of Fizzy… darn, I mean Vizzy, Molson Coors’ brand hard seltzer. (Bonus: we’ve got the brief for you)

Just so we’re not fuzzy on the issues – this is an appeal of the District Court’s denial of Future Proof’s request for a preliminary injunction against Molson Coors. Future Proof wanted to stop Molson from marketing and producing the Vizzy branded hard seltzer claiming it competed with and was confusable/confused/confusingly similar to/with Future Proof’s Brizzy branded seltzers (one of the reasons you request an injunction is that you don’t have to wait to appeal a preliminary injunction ruling to the end of a case – which can take years – you can appeal right after the ruling).

The District Court denied that request finding the predominant feature of both marks – the “izzy” suffix – was evocative of “fizzy” which wouldn’t be trademarkable, and even went so far as to help the parties by noting the stark lack of likelihood that Future Proof could succeed on any claims give the “plethora of competing products humorously close to Plaintiff’s mark.”

The opening brief skips over a concerted effort to discuss the standard of review and blithely pushes the 5th Circuit to review the case as though it was a likelihood of confusion decision and not an injunction. That’s likely going to be an issue that comes up at oral argument.

In claiming the likelihood of confusion analysis was incorrect, the Brizzy hard seltzer maker raises these four issues:

1. Strength of plaintiff’s mark. Whether the trial court erred by using the wrong legal standard to classify BRIZZY as merely “descriptive of fizzy products” and therefore “weak”;
2. Similarity of marks. Whether the trial court erred by focusing on certain visual differences in the product packaging, over the overwhelming visual and aural similarities between the marks;
3. Actual confusion between marks. Whether the trial court erred by using the wrong legal standard when it rejected evidence of actual confusion among product wholesalers, especially when there has been little or no opportunity yet for confusion among consumers; and
4. Weight for degree of care and intent. Whether the trial court erred in how it evaluated two other relevant factors—customers’ degree of care and Molson Coors’s intent—against Future Proof’s request for an injunction.

The brief also raises the specter of the points in a preliminary injunction analysis that the District Court did not address given that it found against Future Proof on the hard seltzer maker’s likelihood of success. 

You can read Future Proof’s brief here.

You can read their excerpted record here.