The Patriots and the Rams weren’t the only ones going butting heads this past Super Bowl. As many of us have likely seen through one medium or another, back in February Bud Light aired a ballsy ad during this year’s Super Bowl, and the target was brewing mega-corp MillerCoors. The spot, called Special Delivery, depicts a fictional medieval-era king on a quest to return a barrel of corn syrup, mistakenly delivered to the Bud Light castle, to its rightful owners at either the Miller or Coors Castles. The ad, of course, mocks MillerCoors, implying the company utilizes corn syrup to brew its beers, whereas Bud Light, owned by Anheuser Busch, does not. The description for the ad on Bud Light’s YouTube is far less subtle: “Miller Lite and Coors Light use corn syrup. And Bud Light doesn’t.” This, according to Anheuser-Busch, is a good enough reason for beer drinkers to choose Bud Light over its competitors.
Bud Light’s point? Transparency. “[W]e are going to continue talking about our ingredients and what we leave out because consumers told us transparency is important.”
Corn syrup is the punchline of the false claims; MillerCoors is the casualty of the misleading Campaign.
So the “Corngate” saga was born. But now MillerCoors is suing. On March 21 of this year, MillerCoors filed suit in Madison, Wisconsin, alleging false advertising and trademark dilution. In the complaint, MillerCoors states that Anheuser-Busch is deliberately confusing consumers, as corn syrup is commonly used by breweries in the brewing process to allow yeast to grow and bring about fermentation. It states further that “[u]nder the guise of ‘transparency,’ AB singled out MillerCoors use of a common brewing fermentation aid, corn syrup, for a deliberate and nefarious purpose: it was aware that many consumers prefer not to ingest ‘high-fructose corn syrup’ or ‘HFCS,’ and had reportedly conducted extensive focus group testing in which it found that consumers do not understand the difference between ordinary corn syrup (used by numerous brewers, including AB itself) and HFCS, the controversial sweetener commonly used in soft drinks . . . [Then,] AB invested an enormous amount of money—over $13 million in media time to convey the message to nearly 100 million consumers during Super Bowl LIII alone—to perpetuate the consumer confusion.”
In the realm of intellectual property law, MillerCoors also alleges federal trademark dilution. Specifically, it alleges Bud Light engaged in its campaign “with the specific intent to damage the reputation of the Coors Light and Miller Lite brands and products, preying on consumers’ negative association with the presence of HFCS in beverages and foods. Corn syrup is the punchline of the false claims; MillerCoors is the casualty of the misleading Campaign.”
Under Section 43(c) of the Lanham Act, “the owner of a famous mark . . . shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark. . . .”
To succeed on a federal dilution claim takes some work. Per Louis Vuitton Malletier S.A. Haute Diggity Dog, LLC, the claimant must show the presence of four key elements: the plaintiff must own a famous mark that is distinctive; the defendant must have commenced using a mark in commerce that is allegedly diluting the famous mark; the similarity between the two marks gives rise to an association between the two marks; and the association is likely to impair the distinctiveness of the famous mark or is likely to harm the reputation of the famous mark.
Additionally, there are “fair use” exclusionary hurdles the claimant must clear under Section 43(c)—such as use in connection with advertising or promotions, use in connection with identifying, parodying, criticizing, or commenting on the famous mark, use in connection with forms of news reporting and commentary, and any noncommercial use of a mark.
It remains to be seen, of course, whether MillerCoors will prevail here, but the road ahead will not be an easy one for this claimant. Just at a glance, per Section 43(c)’s terms, Bud Light’s Special Delivery ad seems to fall squarely into the advertising exception, if not also within the use in connection to a critique. But one thing is certain—MillerCoors will not take the jab lying down. In fact, and just in time for March Madness, the plaintiff brewing company intends to release two ads to flip the joke on Anheuser-Busch, which will show actors in period clothing—referring back to Bud Light’s use of the medieval backdrop—enjoy cans of Miller Lite behind the set. Battling brews mixed with petty media comebacks? We’ll drink to that.
Chelsea Pieroni, 25 March 2019