An Ice-Cold Trademark Dispute Plays Out in the Public Eye
In January, MolsonCoors had a case of the Mondays.
After the internet gleefully called out a typo-plagued ad campaign on billboards and in full-page newspaper ads touting Coors Light’s “ice cold refershment,” Coors took lemons and made shandy.
Coors soon posted a statement that it had a “case of the Mondays.” The playful recognition of the typo gained the company kudos for its heads-up pivot on what appeared to be a mistake (though some speculated it was a part of a larger marketing stunt).
This episode would be enough to spark a conversation about how brands interact with the public, but the story doesn’t end there.
Next, Coors aired a commercial during the Super Bowl in which Coors Light packaging was changed into “Mondays Light.” Customers could purchase a limited-edition “case of the Mondays.”
This didn’t sit well with Atlanta-based craft brewery Monday Night Brewing. The day after the Super Bowl, it posted on Facebook that “Case of the Mondays is us,” accompanied by a picture of its own “Case of the Mondays” IPA variety pack.
Apparently, before the big game, Monday Night Brewing sent Coors a cease-and-desist letter complaining about the “Case of the Mondays.” Monday Night Brewing’s Facebook feed also posted a copy of Coors’ response to that letter.
Reactions were mixed. A Monday Night co-founder was quoted in a local news report criticizing the “contrast between craft beer world and big corporate world” and noting the challenges for a small business in a legal dispute against a large corporation. (Though anyone who believes craft breweries are all camaraderie and no competition might have forgotten about rampant trademark disputes over beer and brewery naming during the 2010s.) On the other hand, Monday Night received some pushback for overzealously defending its rights.
This ice-cold marketing and trademark saga illustrates some of the potential pitfalls to brands – large and small – of fights in the court of public opinion.
Enforcement or bullying? It’s in the eye of the beholder.
The internet can be a dangerous place for brands. Search “trademark bully” and you’ll get results from law review articles to internet shaming (like the 2024 public outcry that eventually forced Momofuku to give up claimed rights to “chili crunch”).
The danger is often greatest for large corporations, which run the risk of being on the wrong side of a “David v. Goliath” characterization. To put the company’s best face forward, legal teams and outside counsel need to communicate with marketing and customer-facing employees and understand how the brand interacts with the public. If consumers are directly involved in alleged infringement, tread lightly.
The brand personality goes hand-in-hand with the level of risk tolerance of a particular industry. For example, a beer company can make a tongue-in-cheek approach to trademark disputes work. That probably wouldn’t fly in an industry like financial services. Of course there are limits, even an industry known for poking lighthearted fun at competitors. In 2008, Brooklyn Brewery gave up on a new design – at the reported cost of tens of thousands of dollars – rather than get involved in a spat with Trappist monks.
Know your goals
Finally, it can be helpful to take a step back before going full-bore on a trademark offensive. Modest Proposals, which calls itself “an activist collective dedicated to creating positive change,” created a website for a fake organization called Repaer as part of a protest against energy companies. The Repaer website advertises satirical “life offsets,” to expand the lives of humans, thereby offsetting the “human footprint” of energy companies being targeted, which were listed on the site as “featured partners.”
As those companies were the targets of Modest Proposals’ criticism rather than “partners,” two of them sent “stern emails threatening legal action,” according to the Electronic Frontier Foundation, which represented Modest Proposals in the matter. The trademark battle seems to have achieved Modest Proposals’ desired goal of drawing attention to the cause while making the trademark owners look like the aggressors.
This discussion would not be complete without our favorite internet C&D snafu. In 2010, novelty products website ThinkGeek.com advertised a fake “canned unicorn meat” as an April Fools Day prank. The ad called the product “The New White Meat,” to the chagrin of the National Pork Board, which calls its product THE OTHER WHITE MEAT. The pork board sent ThinkGeek a cease and desist letter.
ThinkGeek posted an “apology” to the pork board, stating, “We’d like to publicly apologize to the NPB for the confusion over unicorn and pork–and for their awkward extended pause on the phone after we had explained our unicorn meat doesn’t actually exist.”
Before pursuing a trademark infringement claim, consider what might happen if your client’s position ended up on social media. Think about how to achieve the company’s goals and what tone to take in pursuing a potential infringer. Enforcement is important but can be perilous. Knowing the brand and having a clear enforcement framework before an issue arises can help protect trademark rights and public perception.
About the Author: Suzi Morales is a writer and editor specialising in IP. She previously practised IP law, including trade mark prosecution and all types of IP litigation, for 15 years. Learn more about Suzi’s work at www.suzimorales.com/intellectual-property-law-marketing