Show Support For Your Team With Bud Light!by Brad Warbiany
With the start of college football barely over 24 hours away, those of us who are rabid fans are salivating for some action… And for many of us, that pavlovian response to college football has us salivating for a tasty adult beverage as well. What better way to show our support than by drinking our beverage of choice* in team colors?
Well, apparently some schools have an issue with this, including my alma mater, Purdue:
Purdue University officials have joined a coalition of colleges in calling for Anheuser-Busch InBev to stop selling its “fan can” — a regular-size aluminum can of beer decked out in school colors.
Lafayette-area liquor stores and bars are now selling Bud Light in the cans mirroring Purdue’s black-and-gold colors.
“We feel like it implies that Purdue is associated with that certain type of product,” said Teri Lucie Thompson, Purdue’s vice president for marketing and media. “We have sent a letter to ask them to cease and desist.”
Now, as someone who bleeds Old Gold & Black when cut, I have a more than tangential emotional attachment to those colors. But are they legally defensible in a trademark battle? Prior to 2008, one might think that a color scheme is not defensible. In Nov 2008, though, the 5th Circuit Court ruled that school colors were defensible against a company marketing apparel. This is still not necessarily relevant here, as one of the tests of the court was that of confusion:
The three-judge panel of the Fifth Circuit appeals court took very much the same stance as the lower court. In their ruling, the judges laid out the two major criteria the universities had to meet to prove trademark infringement: to “establish ownership in a legally protectible mark,” and to “show infringement by demonstrating a likelihood of confusion” between Smack’s apparel and the universities’ own products.
Most of Smack’s shirts and other equipment, he points out, “taunt the opponent” rather than “extol the virtue of a college,” he said, and since “universities tend not to approve or license shirts that taunt their opponents,” Smack is free to make shirts like that.
This suggests that one of the clear delineations in this case might be a question of whether there is confusion over whether the product is competing with officially-license products, in such case as the university does officially license similar products (such as apparel). No university that I am aware of licenses its colors or other logos to alcoholic beverage makers, therefore I think claims of confusion may not exist. In addition, the ONLY identifiable mark on these cans is the colors, unlike the apparel case where the shirts contained many additional marks relating to specifics of the schools’ teams or specific dates and scores of games.
Whether legally defensible or not, though, it seems that the cans are welcomed by fans:
Dan St. John, owner of the four Village Bottle Shoppes in West Lafayette, said he has been stocking the black-and-gold can for a few weeks.
The cans, which retail for $18.49 in a 24-can case, are selling a little better than the regular Bud Light cans, he said.
So far St. John has heard no complaints or been told by his distributor the promotion was over.
For now, the Bud Light “fan cans” are available around Purdue and the popularity is catching on.
Jake’s Roadhouse, a bar in the Chauncey Hill Mall, recently made an order from its distributor to start selling beer in the “fan can,” said manager Shannon Duda.
Without conducting a poll of those in the Lafayette area, my gut instinct is that most purchasers of these cans are not under the assumption that they are drinking officially licensed beer.
I don’t mind the universities calling for Anheuser-Busch to end the promotion, and ratcheting up the public pressure on them to stop. As the story mentions, A-B has already pulled the promotions from a few locales. But I’d prefer to see this handled outside the courtroom.
* PS – I use the term “beverage of choice” loosely, and similarly am loose with language when referring to Bud Light as “beer”. It’s not exactly on my grocery list in the run-up to a college football Saturday.