Thursday, September 22, 2005
Coors Sued for Infringement Based on Bunny Parody
By ROGER M. GRACE
The Adolph Coors Co. in 1991 was involved in a widely reported legal tussle over a put-on. Rival brewer Anheuser Busch, as I’ve pointed out, has been involved in numerous court battles over parodies, as the plantiff, being paranoid over take-offs on Budweiser. By contrast, Coors was the defendant.
Judge Charles R. Norgle Sr. of the U.S. District Court for the Northern District of Illinois denied a preliminary injunction that was sought by Eveready Battery Co., Inc. to bar the airing of a Coors commercial. The commercial, featuring actor Leslie Nielsen, parodied Eveready’s parodies.
The Eveready commercials would feature a mechanical drum-banging Eveready Energizer bunny, emerging during a supposed commercial for a non-existent product, with the bunny grabbing the spotlight. Norgle described the satire Coors produced:
The Coors commercial begins with a background voice, speaking over a classical music score, heartily describing the attributes of an unidentified beer. As the voice speaks, the visual shows an extreme close-up of beer pouring into a glass. The voice and music then grind to a halt as a drum beat is heard and Mr. Nielsen appears walking across the visual. Mr. Nielsen wears a conservative, dark business suit, fake white rabbit ears, fuzzy white tail and rabbit feet (which look like rectangular pink slippers). He carries a life-sized bass drum imprinted with the COORS LIGHT logo. After beating the drum several times, Mr. Nielsen spins rapidly seven or so times and, after recovering somewhat from his apparent dizziness, resumes walking. He says “thank you” before exiting off the screen.
In the course of discussing fair use, Norgle pointed out:
[T]he Nielsen commercial is obviously not a verbatim copy of plaintiff’s commercials. Rather, Coors’ ad merely incorporates certain elements of those commercials necessary to conjure an image of the Eveready spots for humorous effect. Its imitation of the Energizer Bunny is far from excessive. Mr. Nielsen is not a toy (mechanical or otherwise), does not run on batteries, is not fifteen inches tall, is not predominantly pink, does not wear sunglasses or beach thongs, and would probably make a better babysitter than a children’s gift. Although Mr. Nielsen dons rabbit ears, tail, and feet (thus imitating certain bunny-like features), he by no means copies the majority of the Energizer Bunny’s “look.”
Coors was the plaintiff in a 1980 case in which it went to federal court, seeking to obtain an order for the destruction of cans and bottles of Coors.
While Coors is now sold nationally, and even beyond the United States’ borders, the brewing company was then unable to produce enough beer to be able to market it beyond a 16-state region in the west. A. Genderson & Sons, Inc. bought large quantities of Coors from retailers and distributed them, at a marked-up price, in Maryland and the District of Columbia.
The problem was that Coors, to maintain flavor, was not pasteurized. As a consequence, its flavor deteriorated quickly, and the manufacturer required that retailers destroy cans or bottles not sold within 60 days of the date of manufacture. Also, the beer needed refrigeration.
Gunderson did not refrigerate the beer and did not destroy it when 60 days had elapsed from its manufacture.
Coors sued for trademark infringement. Hold on, Gunderson protested, it didn’t copy or imitate the trademark—the packages and labels were those printed by the manufacturer, itself.
U.S. District Judge John L. Kane of Colorado responded that §1114 of the Lanham Act “has not been construed as narrowly as defendant suggests.” He wrote:
“As plaintiff asserts, §1114 has been liberally construed to prevent misappropriation of the goodwill of the owner of a trademark; the act forbids misappropriation which will adversely influence the owner and the public.”
Kane went on to comment, in connection with a state cause of action:
“In the present action defendant’s conduct is likely to confuse and deceive the public and damage plaintiff’s reputation. The public interest is an important one which deserves protection especially when it comes to matters so dear to the hearts of discriminating connoisseurs of civilization’s oldest refreshment.”
Adolph Coors Co. merged Feb. 9 with Molson Inc., forming Molson Coors Brewing Company. Several class-action lawsuits were filed in May alleging that proper disclosures had not been made prior to the wedding of the two companies.
Watch the news pages for developments.
Copyright 2005, Metropolitan News Company