Thursday, September 8, 2005
Anheuser-Busch Raises a Fuss Over Satirical T-Shirts
By ROGER M. GRACE
Anheuser-Busch manufactures Budweiser beer and owns a bevy of marks associated with that product. It is vigilant about safeguarding those marks—but to an extreme.
Parodies are apparently never funny to Anheuser-Busch, and any play on words involving “Budweiser” or any of its slogans is bound to result in a lawsuit, or at least a threat of one.
This week: a look at Anheuser-Busch’s objections to satirical t-shirts.
•Venture Marketing, Incorporated—formed by one Michael Berard, a student at the University of North Carolina at Chapel Hill—manufactured a t-shirt depicting a red, white, and blue beer can. The labeling on the can, bearing the words “King of Beaches,” made no reference to beer, only to Myrtle Beach, in South Carolina. The t-shirts were sold in shops in the areas near that beach.
Anheuser-Busch got uptight about the similarity of that label to its own, suing in the District Court for South Carolina. The jury found that the can depicted on the t-shirt was not “confusingly similar” to a Budweiser can, but the judge granted judgment notwithstanding the verdict.
The Fourth U.S. Circuit Court of Appeals in 1992 reversed. Writing for the majority, Judge J. Harvie Wilkinson III recited that “a holder of a registered trademark is entitled to protection only from uses of the mark that create a likelihood of consumer confusion” and said the jury was justified in determining that the t-shirt was an obvious satire.
The T-shirt design mimics the characteristic turns of phrase on the Budweiser label by applying them to the beach: the “taste,” “smoothness,” and “drinkability” found “in no other beer at any price” become the “unspoiled beaches, natural beauty, and southern hospitality” composing a “mixture you will find on no other beach in any state”; the beer’s ingredients—the “Choicest Hops, Rice and Best Barley Malt”—are imitated by the “Choicest Surf, Sun, and Sand”; “King of Beers” is changed to “King of Beaches”; and “This Bud’s For You” is mimicked by “This Beach is For You.” Berard testified that this “irreverent representation” was calculated to parody or satirize the Budweiser label, and we think the jury was entitled to agree that it had that effect.
Former United States Supreme Court Justice Lewis Powell, sitting on assignment, dissented, taking the rather extreme position that “[o]nly parody in [an] ‘editorial or artistic’ sense serves sufficiently strong First Amendment values to override government interests in trademark protection.” He insisted that “T-shirts bearing the non-verbal Budweiser label design, and nothing more, would infringe Anheuser-Busch’s trademark.”
“Our dissenting brother’s standard is so broad that it would banish virtually all attempts at humorous takeoffs on trademarks as a matter of law. The dissent would establish a zone of immunity for any trademark that could lay claim to strength and familiarity—the very marks for which parody is most likely.”
•Andy’s Sportswear, Inc. manufactured and distributed “”Buttwiser” t- shirts. Anheuser-Busch sued in 1996 in the U.S. District Court for the Northern District of California. It invoked the Federal Trademark Dilution Act which had gone into effect in January.
According to a report by Bloomberg Business News, the t-shirts employed the “distinctive lettering” used on Budweiser cans. It also featured “scantily clad women,” not borrowed from Budweiser packaging.
Chief Judge Thelton Henderson granted a temporary restraining order, saying that “plaintiff has, at the very least, raised serious questions with respect to whether defendant’s t-shirts will ‘dilute’ [its] marks.” He ordered that all of the t-shirts distributed to retailers be recalled.
“Dilution” is defined in the statute as “the lessening of the capacity of a famous mark to identify and distinguish goods or services.” It’s rather stretching it to assume that the t-shirts would lessen one iota the strength of the Budweiser mark.
In fact, as a person wearing such a t-shirt walked down the street, those seeing it would be reminded of Budweiser, which could only boost sales of that beverage.
•John Susor, an owner of a bar in a small Florida beach town, was threatened by Anheuser-Busch in 2002 with a lawsuit based on the “Buttwiser” t-shirts he printed in his backroom and sold. Bearing a drawing of four women in bathing suits, it contained the parodic phrases, “This Butt’s For You” and “King of Rears.”
Crude—but hardly apt to do harm to Anheuser-Busch which surely no one could suspect to have imprinted the garments.
Susor stopped printing the t-shirts. The Tampa Tribune quoted him as saying:
“I’m backing off because it’s going to cost me money—for what? I have to back down.”
Next week: more instances of threats and litigation by Anheuser-Busch over supposed infringements.
Copyright 2005, Metropolitan News Company