We have a decision in what some people are calling the trial of the century…not this guy…nor actually anyone but it makes for a great lead in. After a three-day trial, Moose Wizz Root Beer has been declared a trademark infringer of Moosehead beer.
Moosehead Breweries Limited, a Saint John (Canada) company has just won a trademark infringement case against Adirondack Pub & Brewery, Inc. over the trademark MOOSE WIZZ. Moose Wizz is a non-alcoholic root beer that Adirondack produces. I bet nothing gets you thirstier than just hearing the words “Moose Wizz.”
In 2013, Adirondack filed a trademark registration application for MOOSE WIZZ for “soft drinks” to cover its root beer that Adirondack claims it has been been distributing since 2008. Right around when Moose Wizz’s application hit the USPTO attorney’s desk, Moosehead busted down the door and complained that the mark is confusingly similar to their “MOOSE” family of trademarks. Moosehead claims ownership over the mark “MOOSE” and any product that bears resemblance to a moose, more specifically, “marks displaying the head and antlers of a moose.” After Moosehead filed their opposition to the MOOSE WIZZ mark, Adirondack dropped and abandoned their filing, but continued to use the mark on their products.
After Moosehead caught wind of Adirondack’s continued usage of the mark in commerce, Moosehead unsurprisingly filed a trademark infringement suit. The suit ultimately hinged on the question whether people could differentiate non-alcoholic root beer from alcoholic beer because, as Moosehead claims, the two products are sold through the same channels of trade to the same type of consumer. The parties where unable to resolve the matter and it went all the way to trial. Expert witness, Bullwinkle testified about the fame of Moose Wizz but his testimony did not ultimately sway the jurors.
In the end, Moosehead prevailed in the glorified “wizzing” contest. Moosehead convinced a jury that consumers would confuse the two because Moosehead emerged the victor and was awarded $8,800 in lost profits. This decision essentially blurs the line across carbonated beverages based on Moosehead’s argument. The argument made was that because versions of “hard” root beer are being offered in commerce, people could confuse regular root beer with an alcoholic beer.
This decision comes from a line of recent Moosehead trademark crackdowns. Moosehead is apparently SUPER protective over the “MOOSE” family of marks. They have recently opposed Fair State Brewing Cooperative for “POMP LE MOOSE,” Ninja Moose Brewing LLC for “NINJA MOOSE” (apparently Moosehead can be the ONLY brewery whose name features the beloved woodland critter), RJ Rockers, Inc. for “BROWN EYED SQUIRREL,” and Brian & Nicholas Aquadro for “FEISTY MOOSE BREWING COMPANY,” just to name a few. The sad part is that most of these applicants are small time brewpubs or local small batch brewers, and once they see the name of a large brewery like Moosehead opposing their mark, they drop it instantly.
My home-brewed speciality, Moose Knuckle Beer, will never see the light of day.
*Thank you, Martin Passante, for providing his expert opinion on beer for this article.Martin Passante, is a second year student at Brooklyn Law School, where he specializes in intellectual property, entertainment and beer law. *