Thursday, September 15, 2005
Can Animal-Shaped Party Crackers Be Called ‘Party Animals’?
By ROGER M. GRACE
Animal crackers are nothing new. But Owen Ryan dreamed up a variation. Rather than making animal-shaped snack crackers, he’d use wheat and sesame-seeds, so that they’d be party crackers. And he would market them as “Party Animals,” a term in common parlance.
Who could possibly mount a legal objection to that?
If you’ve read the previous columns on this subject, you’ll recall that Anheuser-Busch, maker of Budweiser beer, has a staff of threat-makers and litigators—that is, its legal department—that seeks to deter any commercial use of anything that brings to mind Budweiser.
How does a cracker called “Party Animals” infringe on a mark related to Budweiser? Well, Anheuser-Busch used a dog named Spuds MacKenzie as the Budweiser mascot. It denominated Studs the “Original Party Animal.” So, Ryan’s proposed use of the words “Party Animals” would be an infringement.
That’s so far-fetched that you would think that Anheuser-Busch, if its threat of litigation did not have the intended intimidating effect, would not possibly press such a half-baked contention in public proceedings.
But it did. It opposed Ryan’s application for registration of a trademark, and moved for summary judgment.
Even after the Trademark Trial and Appeal Board on May 30, 1989 rebuffed the bulk of Anheuser-Busch’s contentions—most significantly, finding that consumers would not confuse the crackers with Spuds and/or Budweiser—the brewing company did not give up the fight.
An issue remained as to whether Ryan’s crackers had entered commerce. Quickly, they did.
The Associated Press quoted Ryan in November, 1989 as saying of Anheuser-Busch’s actions:
“This is financial bullying and harassment, plain and simple. It’s like a bully who goes to a playground and wants to take your ball because he’s bigger.”
The AP story also related that “Ryan said the dogfight pits a pipsqueak businessman with five employees and no mascot against a company with $9.7 billion in annual sales, 41,000 employees and Spuds, an English bull terrier....”
Though government offices are usually closed on holidays, it was on Christmas Day in 1990 that Ryan got a present: registration of his trademark. The date of the crackers entering commerce was listed as June 16, 1989.
(The trademark was cancelled Jan. 5, 2002, based on non-use.)
Another example of Anheuser-Busch’s antics as a compulsive litigator is reflected in this report on July 28 in the St. Petersburg (Fla.) Times:
“DON’T MESS WITH ANHEUSER-BUSCH: Farnam Cos.’ line of dog toys includes ‘7-Pup’ in the shape of a green soda can, ‘Grey Poopon’ in the form of a mustard bottle and ‘Dog Martens’ styled like a shoe. But its ‘Buddyweiser,’ a squeaky toy in the shape of a beer bottle, has drawn the attention of Anheuser-Busch Cos., the maker of Budweiser and a company known as a vigorous defender of its trademarks. Anheuser-Busch has sued Farnam, saying ‘Buddyweiser’ infringes on its trademarks.”
The action was filed in St. Louis. What would you bet that the makers of 7-Up, Grey Poupon, and Doc Matens won’t join it.
Usurpations of trade names and slogans are one thing. They do harm to a victim. But an obvious play on words relating to a well-known product does nothing other than draw attention to that product, thus constituting a form of publicity for it.
Campbell’s, wisely, did not sue Andy Worhohl over his paintings of its soup cans. But if Worhohl had made the mistake of depicting a Budweiser can, there’s no doubt that Anheuser-Busch’s warriors cum law licenses would have attacked.
And yet, and yet...in 2001, when Budweiser was running language-corrupting TV spiels featuring young males, at least one of whom posed the query “Whassup?”, the thought of suing propagators of Internet parodies of the spots was dismissed.
The determination not to sue was reached notwithstanding that trademarks for “Whassup?” had been accepted for registration by the U.S. Patent and Trademark Office.
The Milwaukee Journal Sentinel reported on Feb. 17, 2001:
“The Internet really caused the phrase to fly. Suddenly, sites were going up on the Internet with parodies of ‘Whassup?’ using everything from people in the news to the South Park characters. The sites were not sanctioned by the brewer.
“Other traditional advertisers might’ve seen these ‘Whassup?’ rip-offs and said ‘cease and desist,’ ” said [Anheuser-Busch’s vice president for brand management, Bob] Lachky. “But we said, ‘Stop? What are you, crazy? This is great, this idea is cool and Bud is an integral part of it.’ The Internet played a huge part of its success, and you can never really plan that. That’s good luck.”