On June 10, Future Proof Brands, the creator of a hard seltzer known as Brizzy, filed an appellate brief before the Fifth Circuit after the Western District of Texas denied Future’s request for an injunction against MillerCoors, the creator of a hard seltzer known as Vizzy. Future Proof alleged that consumer confusion between the similar marks resulted in trademark infringement under the Lanham Act.
Future Brands asserted that the trial court incorrectly denied the request for injunctive relief after the court said it found “insufficient evidence of a likelihood of confusion.” Future alleged trial court error as to the legal standard used to classify Brizzy as a “weak” mark, the court’s focus on the visual differences in product packaging as opposed to the text and sound of the marks themselves, and the court’s failure to consider evidence of actual confusion and the defendant’s intent.
Future wrote that the trial court errors could be corrected by analyzing the similarity between the marks in conjunction with “the presumption of validity that accompanies a registered trademark such as Brizzy.” They also argued the court should focus on “overwhelming visual and aural similarities between the marks and how they are used in the marketplace.” Future requested that the appellate court consider evidence of confusion on the part of wholesalers, even though wholesalers may not be the end consumers. Finally, Future requested a proper weighing of evidence that showed hard seltzer beverages ” are low-cost products for which consumers typically make purchase decisions quickly” and thus likely to result in an increased likelihood of confusion among consumers.
Future Proof Brands is represented by Reese Marketos LLP and Crowell & Moring, LLP.
