AB InBev Fails To Get 'Patagonia' Trademark Suit Dismissed

from the nice try dept

Earlier this year, we discussed a trademark suit brought against Anheuser-Busch InBev by Patagonia, the famed outer-wear maker known best for its association with skiing and outdoor sports apparel. While we usually make a big deal about market separation when it comes to trademark enforcement, this case was notable for two reasons. First, the trade dress choices made by AB InBev for its “Patagonia” beer were quite similar to Patagonia’s trademarks, not to mention that AB hosted popup locations at skiing and biking locations to sell its beer, exactly where Patagonia is so well known. Second, AB is a notorious trademark hound, gobbling up all kinds of marks and then wielding them like a cudgel against small entities. If anyone were going to be sensitive to the trademark rights of others, you would think it would be a company like AB. But not so much.

Rather than admitting its error and siding for strong trademark rights, however, AB InBev decided to try to get the lawsuit tossed by claiming that “Patagonia” is not actually well known and therefore should not be afforded federal trademark rights. The court took 20 pages to decide that AB InBev was wrong and that the case would move forward.

U.S. District Judge Virginia A. Phillips disagreed, writing in a 20-page order Tuesday that Patagonia has – at this stage in the proceedings – sufficiently shown its mark is both “famous and distinctive” and that promotion of its brand has factored in its $10 billion in sales since 1985.

“Assuming these allegations are true and construing the facts in the light most favorable to plaintiffs, plaintiffs have sufficiently alleged that its Patagonia mark is “famous” for purposes of its federal trademark dilution,” Philips wrote.

The sales numbers are really all that was required to refute AB’s ridiculous claim. Anecdotally, I can say that I haven’t been to a ski mountain in a decade or so, and even I am fully aware of Patagonia’s brand. The company has been around forever and is a common sight out west.

The court also refused to dismiss on AB’s claims that it in fact had not abandoned its Patagonia trademark by not using it for half a decade and that there would be no confusion by the public that its “Patagonia”-branded beer would be confused with the clothing company.

Phillips also denied Anheuser-Busch’s request to dismiss on grounds that Patagonia failed to show that customers would associate their beer with its clothing and its brand of environmentalism. The brewer likewise failed in its argument that it had not abandoned the Cerveza Patagonia mark from Warsteiner despite not using the mark for five years.

Rob Tadlock, a member of Patagonia’s legal team, applauded Phillips’ ruling as “a well-reasoned opinion rejecting Anheuser-Busch’s effort to avoid defending Patagonia’s claims, including that Anheuser-Busch committed fraud on the Trademark Office and has deliberately tried to confuse customers into thinking that Patagonia Cerveza is produced by Patagonia, rather than Anheuser-Busch.”

Again, where is AB’s strong stance on trademark in this case in which it is the one that appears to have run afoul of another’s trademark rights? To the shock of this writer, it appears the company has something of a “trademark for me, but not for thee” philosophy.

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Companies: inbev, patagonia

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Comments on “AB InBev Fails To Get 'Patagonia' Trademark Suit Dismissed”

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18 Comments
Mike Masnicksays:

Re: Patagonia who?

I’ve been boarding for decades, and I can’t say that I’ve ever heard of Patagonia outside of the Top Gear episode. Which kinda adds some credibility to AB’s claims of nonuse, and abandonment.

What, really? It’s… everywhere, at least where I am. I mean, it’s so everywhere that it’s kind of a cliche. It’s like Starbucks. It’s such a cliche that the "VC Starter Kit" joke thing includes a Patagonia vest: https://vcstarterkit.com/

urza9814says:

Re: Re: Re: Patagonia who?

I’m not big on clothes and I avoid sports of all kinds as much as possible, but I’m quite familiar with Patagonia. I would have guessed they were bigger than North Face honestly. And I’ve certainly never heard of "Helly Hansen"…

And given that the article says it’s common "out west", yet I’ve never lived further west than Pittsburgh, I’m not sure that it would be a regional thing…I did grow up in a small town which is mostly where I recall hearing of them though so maybe it’s a rural thing?

Of course, I look up movie schedules and see what the latest big blockbusters are and I’ve usually never heard of ANY of them these days…"famous" doesn’t mean what it used to…

PaulTsays:

Re: Re: Re: Re: Patagonia who?

"And I’ve certainly never heard of "Helly Hansen"…"

I mainly know of them because I lived in a town popular with kite surfers for a few years and the logo was quite distinctive and on or in every shop. Yet, according to Wikipedia, the company is worth double that of Patagonia. Perspectives are funny things, aren’t they?

PaulTsays:

Re: Re:

"Actually, it is very well known"

To you, perhaps, but as I don’t do much that calls for their type of product I don’t really hear that name in reference to clothing. You’ll find that household names in some regions or industries either don’t mean a thing to others or is best known for something else.

My point is this: whichever company decided to use the name first, both of them took it from a region of a country that’s best known for something unrelated to either of them.

"making 10 billion dollars under a trademark offers you a lot of protection in court"

Erm, where are you getting that figure? A quick Wiki search shows the company is only worth around $200 million. Not peanuts for sure, but not exactly what you’re claiming, unless you were referring to AB InBev (in which case you’re off by an order of magnitude the other way).

urza9814says:

Re: Re: Re:

"To you, perhaps, but as I don’t do much that calls for their type of product I don’t really hear that name in reference to clothing. You’ll find that household names in some regions or industries either don’t mean a thing to others or is best known for something else."

I do nothing that calls for that type of clothing; and apparently it’s big "out west" while I can count on one hand the number of times in my life that I’ve been further west than Pittsburgh..but I am also quite familiar with this brand. I recall TV ads, magazine ads, probably other ads…I would have guessed they were bigger (but less "fashionable") than North Face, although based on the other comments here maybe not?

PaulTsays:

Re: Re: Re: Re:

"I recall TV ads, magazine ads, probably other ads.."

I don’t believe I’ve ever seen one, but it’s a while since I’ve watched ad-supported T with any regularity. Maybe it’s just one of those things where they’re more popular in the US than anywhere else?

Again, I’ll just stress – I’m not saying anyone’s right or wrong wrt to the claims in the lawsuit, it’s just that it does seem to be quite possible not to have come across the clothing brand despite the disbelief expressed by some. This might just be one of those bubble things, where the place you live has something ubiquitously but go somewhere else and nobody’s ever heard of it. I travel internationally on a regular basis, so I see such things all the time.

"I would have guessed they were bigger (but less "fashionable") than North Face"

Well, the "less fashionable" bit might be the key. As I mention, I’m not big on winter sports, so I would only notice the people wandering around in brands worn for fashion outside of that arena. of course, I might step outside now and spot people wearing them all the time now that it’s something I’m likely to notice!

PaulTsays:

Re: Re: Re: Re:

"I’m curious – what part of the world do you live in, PaulT?"

Southern Spain.

Helly Hansen is a Norweigan brand, while Patagonia is American, which probably explains the disconnect, but:

https://en.wikipedia.org/wiki/Patagonia_(clothing)

Revenue $209.09M (2017 estimate)

https://en.wikipedia.org/wiki/Helly_Hansen

Revenue NOK 3.7 billion (US $425 million) (2018)

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