A Trademark Lawsuit ‘Lager’ Than Life 

budweiserThe Lumbee Native American Tribe from North Carolina has sued In Bev’s famous American Subsidiary, Anheuser-Busch, LLC, owner of the famous BUDWEISER and BUD LIGHT brands of pilsner style beers.

The lawsuit was filed earlier this week, on June 14, 2016 in the Federal District Court for the Eastern District of North Carolina, Southern Division.[1]

The Lumbee Tribe’s lawsuit alleges trademark infringement, unfair competition, and deceptive trade practices for Anheuser-Busch’s use of the tribe’s HERITAGE, PRIDE & STRENGTH slogan and related logo design. According to the Complaint, Budweiser allegedly began using the tribe’s logo as early as 2004 and the HERITAGE, PRIDE & STRENGTH mark in 2015.

The fact the Lumbee Tribe filed the lawsuit remains somewhat puzzling since it appears that when Anheuser-Busch first learned about this issue it immediately disclaimed any responsibility, which was immediately substantiated by Anheuser-Busch’s local distributor and named co-defendant R.A. Jeffreys Distributing Company.

In fact, R.A. Jeffreys released its own statement, noting that the banners it created were meant to “honor the rich heritage of the Lumbee Tribe,” and confirms they were made without the knowledge of Anheuser-Busch.

Both named defendants have expressed apologies to Plaintiff. The cultural climate surrounding the use of Native American likenesses, images, nicknames and stereotypes as trademarks has rapidly transformed over the past few years – the most high profile example of this is the cancellation of several trademark registrations owned by Pro-Football, Inc. for several marks including the term “Redskins” last year on grounds that the marks are disparaging.[2]

If the Lumbee Tribe proves infringement, it will be entitled to an award of its actual damages and the defendants’ profits. Proving damages can be a challenge. One way to measure damages is to show that had it not been for a defendant’s trademark infringement, a plaintiff would have made $X more. In contrast, trademark law also provides for “disgorgement” of profits in some instances, which means that any profits Anheuser-Busch realized from using either of the Lumbee Tribe’s marks may have to be paid to the Lumbee Tribe. Given Anheuser-Busch’s high volume of sales, the defendants’ profits could be significant.

Although 15 U.S.C. §1117(a) allows for the disgorgement of profits as one measure of damages, some jurisdictions only allow for disgorgement if there is evidence of “willful infringement.” As noted above, this is something Anheuser-Busch and its co-defendant already denies.

Budweiser is no stranger to questionable branding and trademark maneuvers lately, as the company wants its suds to be officially known as “America” this summer, and has rebranded its cans accordingly, using the words “America” on its cans, as well as the United States informal motto E Pluribus Unum,[3] though it does not appear that Anheuser-Busch has sought to register the AMERICA mark with the U.S. Patent and Trademark Office.

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[1] Case No. 7:16-cv-00148-BO

[2] https://www.washingtonpost.com/local/judge-upholds-cancellation-of-redskins-trademarks-in-a-legal-and-symbolic-setback-for-team/2015/07/08/5a65424e-1e6e-11e5-aeb9-a411a84c9d55_story.html

[3] http://www.budweiser.com/

The Author

Jeffrey Kobulnick

Jeffrey Kobulnick is a parnter with Brutzkus Gubner Rozansky Seror Weber LLP. Jeff regularly litigates claims for copyright and trademark infringement, unfair competition, false advertising and related claims under both federal and state laws. He also has significant experience handling Internet-related intellectual property issues, such as domain name registration and dispute resolution, and the protection and enforcement of copyrights and trademarks on the Internet. In addition, Jeff extensively counsels and represents clients on the selection, clearance and registration of trademarks and service marks worldwide. For more information, or to contact Jeff, please visit his firm profile page.

Jeffrey Kobulnick

Joseph Rothberg is an attorney with Brutzkus Gubner Rozansky Seror Weber LLP. Joe supports a number of the Firm’s attorneys on matters ranging from the representation of chapter 7 Trustees in both individual and corporate cases to high profile apparel industry matters. Before joining Brutzkus Gubner, Joe worked on products liability and mass tort claims for a small Los Angeles Firm. For more information, or to contact Joe, please visit his firm profile page.

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