Five Takeaways from the Big Sky / AB InBev Trademark Dispute

News came this week that Missoula Montana’s Big Sky Brewing Co. was voluntarily dismissing its trademark lawsuit against AB InBev after an agreement was reached between the parties.Hold My Beer

Big Sky filed the lawsuit over AB InBev’s alleged infringement of Big Sky’s “Hold My Beer and Watch This” trademark.  Big Sky uses the slogan on its IPA cans and on many other promotional products to market its beer. AB InBev used the slogan in a series of online, comedic videos to promote Bud Light.

About all we know of the parties’ agreement is this: AB InBev agreed to take down the videos, Big Sky agreed to dismiss the lawsuit, and no money is exchanging hands.  Indeed, Big Sky dismissed the lawsuit on Wednesday.  Clicking on the videos in YouTube produces a note stating “This video has been removed by the user.”  The dismissal was “without prejudice” meaning it could be refiled if Big Sky believes there are further transgressions.

Now that this brief chapter in trademark disputes is over, let’s look at five takeaways from the experience.

1.  We still don’t know much.  The most interesting question about the lawsuit was whether a company can take a fairly common and well-known phrase and trademark it for use in promoting a specific product.  Based on prior case law, I believe the answer is certainly yes in an appropriate context as discussed in my previous article.  With the dismissal of the lawsuit, we’re no closer to gaining any insight, much less court opinions, on the issue.

2. Big Sky got some good exposure. With Big Sky distributing to 24 states, it’s by far Montana’s most distributed and well-know brewery. Still, the lawsuit crossed out of beer-centric news wires and into more mainstream and business news publications, showering Big Sky’s name upon beer fans and non-beer fans alike in far more than 24 states.

3. So did Bud Light/AB InBev.  Not that the giant brewing conglomerate needed any help, but I, for one, was not even aware of the videos until the trademark infringement lawsuit hit the newswires.  I’m guessing the hit counts for the videos received quite a boost from news of the trademark dispute,  a calculated risk Big Sky must have considered prior to filing the lawsuit.  But before you argue the lawsuit was counterproductive as a result, consider this: the entire beer world now knows Big Sky lays claim to the trademarked slogan “Hold My Beer and Watch This.” Anyone else using it to market beer will have a harder time arguing the use is innocent and/or permitted.

4. Neither party admitted anything and the settlement terms don’t give us any answers.  This one is related to No. 1, but I promised you five takeaways. It is nearly universal in settlements/agreements of this nature to include a clause stating neither party admits liability, etc. etc. Yet, the terms of any given settlement are often more than revealing.  If they don’t answer the question, they at least tell you quite a bit about each party’s evaluation of risk.  (And, yes, that risk typically includes an analysis on how much any fight is going to cost versus the probability of achieving the desired outcome.)  Here, although AB InBev agreed to take down the videos, AB InBev almost certainly got its full value out of them.  All such things have a shelf life.

5.  Staying professional remains the best posture in trademark disputes.  Note to West Sixth Brewing Co.:  this is a better way to handle trademark disputes.  Granted, West Sixth found itself on the receiving end of trademark infringement allegations, but snarky responses, playing the bullying card, and rallying the troops helps little to resolve what are often legitimate disputes to the objective observer.  There are far more trademark disputes going on than we hear about.  In fact, Big Sky is changing its Cowboy Coffee Porter packaging to avoid a conflict with a coffee company in Jackson, WY.  Many are entirely innocent or coincidental, but are nevertheless potential trademark infringements. Recognizing this, and understanding they’ll only be more numerous as the U.S. has now grown past  2,700+ breweries, provides a strong incentive for keeping things professional.