Thursday, September 1, 2005

Page 11

REMINISCING (Column)

Anheuser-Busch Goes to Extremes In Protecting Budweiser Slogan

By ROGER M. GRACE

Anheuser-Busch, Incorporated, in its understandable quest to protect its valuable trade name “Budweiser” and related slogans, has had to engage in litigation, securing court orders barring use of such names as “Budd-Wise,” “Niagra Bud” and “Billy Budd” and the description, “Beer of Beers.” So vigilant did its legal department become that Anheuser-Busch somehow lost sight of the right of others to play on the word “Budweiser” in a non-harmful manner. This week: a look at its efforts to protect a slogan.

•Chemical Corp. of America put on the market a floor wax that was combined with an insecticide. It used the slogan, “Where there’s life…there’s bugs.” It was clearly a takeoff on the widely recognized slogan, “Where there’s life…there’s Bud,” used by Anheuser-Busch since 1956.

In an action filed in U.S. District Court Florida, Anheuser-Busch sought an injunction barring further use of the “bugs” slogan.

The chemical company and Budweiser were not in competition; nobody would buy floor wax thinking it was beer. Nonetheless, an injunction was granted. “Parties need not be in direct competition” for unfair competition to exist, the judge, G. Harrold Carswell said, adding:

“It was the basic unfairness in the commercial world of which this court took cognizance.”

The Fifth U.S. Circuit Court of Appeals, in an opinion by Chief Judge Elbert P. Tuttle, affirmed. The 1962 opinion said:

  We are aware of the fact that the Court should not be swayed by its instinctive reaction upon reading the record that this is a brazen and cheap effort by the defendant below to capitalize on the good will created by the tremendous expenditure in advertising by the plaintiff. This, of course, is not enough to warrant the grant of relief, but any conduct that is of such a nature as to fairly reek with unfairness and a callous indifference to the damage that might occur to others from the action taken by it will naturally be examined most carefully by a trial court and by an appellate court whose duty it is to determine whether such conduct falls afoul of any established legal principles. Finding, as we do, the liberal trend in the equity courts of the state of Florida, towards the protection of trade names and slogans from unfair attacks by others, we are not reluctant to conclude that what is here morally reprehensible is also legally impermissible.

  I can’t grasp how an obvious play on words is “morally reprehensible.” If anything, use of a slogan that was so close to Budweiser’s would immediately bring to mind the Budweiser slogan—in essence serving as a “free plug.”

(Carswell, as you probably recall, was later appointed by President Richard Nixon to the Fifth U.S. Court of Appeals. His nomination by Nixon to the U.S. Supreme Court was rejected by the Senate in 1970, 51-45.)

•The Florists Association of Greater Cleveland, Inc. is a trade organization comprised of Ohio sellers of fresh cut flowers. For one week in October, 1982, it ran a promotional campaign using the slogan, “THIS BUD’S FOR YOU—And 11 More Rosebuds.”

Anheuser-Busch had been using the slogan “This Bud’s for you” since some time before 1979. Claiming infringement, the beer-maker sought a preliminary injunction against future use of its phrase.

The trade association argued in the federal trial court for the Northern District of Ohio that consumers would not be prone to assume that the flowers its members were selling came from a brewery.

A preliminary injunction was denied in a 1984 decision. Judge Ann Aldrich wrote:

“No consumer called any florist asking to be delivered a six-pack; nor did any consumer call A-B seeking to purchase two dozen roses. The marketing channels for the products are totally different.”

•Max Bloom was a fellow with a bright idea: a sofa pillow in the shape of a potato called “the Original American Couch Potato.” To give the packaging some pizzazz, he used the slogan, “This Spud’s for You.” Yes, you guessed it. Anheuser-Busch protested. Bloom received a “cease and desist” letter proclaiming that he was an infringer and demanding that he destroy the offending packaging.

The Wall Street Journal in a December, 1996 article quoted Bloom as saying: “They said they wanted to resolve things amicably. I didn’t see destroying my merchandise as amicable.”

The article went on to say:

“Anheuser-Busch finds about one potential trademark infringer every day, said Ellis McCracken, the brewer’s general counsel. The company spends ‘substantial’ amounts annually to administer, protect and defend its trademarks, he adds.”

Perhaps legitimate concern has mounted to the point of paranoia.

Next week, more on Anheuser-Busch’s over-active litigation gland.