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Wed, 18 Jul 2018

Shipyard Brewing Loses Its Lawsuit Over Ships and The Word 'Head'

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Roughly a year ago, Shipyard Brewing Co. launched its bid for title holder of the single dumbest trademark lawsuit in the beer industry. The lawsuit against Logboat Brewing came as a result of two concerns. First, both breweries have the word "ship" on some packaging and include images of ships on that packaging as well. Lost on Shipyard appeared to be Logboat's use on its Shiphead brand was that of a woman with hair that somehow was a ship, whereas Shipyard merely had ships in water. That made the trade dress and trademarks fairly distinct. That may be the reason Shipyard coupled that concern with a second, namely that both breweries used the word "head" in their respective brands, with Shipyard having trademarks on brews such as "pumpkinhead" and "applehead." The theory, I guess, was that these two factors that on their own were not valid trademark complaints combined to form one that was.This is where the narrator would jump in and say: "That theory was wrong." The judge presiding over the dispute didn't buy into Shipyard's claims and completely rejected Shipyard's claims in a very thorough ruling. Let's start with the trade dress issue. Do you think these cans look similar?

The answer is "of course not" and that's exactly what the ruling says:
In fact, the cans look very different from each other. Shipyard's can is beige with a redbar at the top and bottom. Logboat's can is white, with a black band towards the top and towardsthe bottom. SHIPYARD appears in an arc of blue letters of fairly uniform size, in a clean,straight font, outlined in white with a dark shadow. SHIPHEAD appears in wavy black lettersoutlined in white, with the first and last letters significantly larger than the rest, and the last threeletters in the words SHIP and HEAD sloping downward in keeping with the triangular spacebetween the sails of the pictured hairdo. The S in Shiphead has the tail of a marine animal. Prominent on the Shipyard can is an image of a ship in water. Prominent on Logboat's can is animage of a woman carrying three cans of beer in one hand, with fish to one side, and with herdark hair styled in the form of a ship. No reasonable person viewing either can could confuseone for the other.
Okay, okay, but Shiphead said it's not just about the trade dress of the design, but also the names! The names are so similar, no? No.
Shipyard argues that its SHIPYARD mark and Logboat's SHIPHEAD GINGERWHEAT mark look and sound alike because they share six out of eight letters. But noreasonable juror could conclude that the terms yard and head independently are similar inlook or sound, outside of the negligible fact that they both end with the letter d. The only realsimilarity between SHIPYARD and SHIPHEAD GINGER WHEAT is the term ship, andShipyard has admitted that ship is a generic term, not subject to trademark protection....Shipyard refers to a place where ships were built and repaired, a physical space. Theterm has been used in the English language since at least 1647. See Merriam-Websterdictionary, https://www.merriam-webster.com/dictionary/shipyard (last accessed April 26,2018). The term Shiphead, on the other hand, is not part of the English language. SeeMerriam-Webster dictionary, https://www.merriam-webster.com/dictionarysShiphead. The termwas invented by an artist, a friend of the Logboat founders, to describe a fanciful vision of awoman with hair coiffed in the shape of a ship.
You know you're in trouble when the judge is mocking your claims by breaking out the non-existent Merriam-Webster's definition of a word you claim infringes on your trademark.Judge Nanette K. Laughrey went on to note that the beers are primarily sold in completely different markets and there's little evidence of competition (or even that Logboat had ever heard of Shipyard beer). The ruling is filled with various quips that suggests Judge Laughrey is perplexed as to how anyone could have though this was a worthwhile lawsuit to file. It dismantles Shipyard's argument piece by piece. For example, Shipyard claimed that there was a likelihood of confusion because of the "public recognition and renown" of its brand, and the Judge basically snorts "what renown?" and points out that the company failed to present any such evidence:
Shipyard submitsdeposition testimony indicating that it has expended more than $1 million in advertising inyears past. ... However, Shipyard claims to have been usingthe SHIPYARD mark since 1992.... Yet, Shipyard does not direct the Court to any evidence indicating when, during the26 years it purports to have been doing business, it spent dollars on advertising....Nor does Shipyard explain what the nature of the advertising was, or where it was directed.There is no evidence in the record indicating that Shipyard directed any advertising efforts atMissouri consumers.
Not enough? If the beer is so renown in Missouri (where Logboat sells its beer), surely there must be lots of sales there? Except... no.
Yet, although Shipyardinitiated this action in May 2017, Shipyard has supplied evidence of sales from only 2016 and2017.... (Shipyard has sold thousands of cases of beer in Missouri.)(... which state that Shipyard sold 1,247 cases of beer in Missouri in 2016,and fewer than 1,000 cases of beer in Missouri in 2017); ...(ZEROREZ's market share has increased from 3% in 2006 to roughly 20% at the time theComplaint was filed.). Thus, even assuming that Shipyard made all of the referenced 2017sales before it brought this action, the record at best shows that Shipyard has sold fewer than2,250 cases of beer in Missouri. Shipyard has not provided any evidence suggesting that this is asizable number. Furthermore, Shipyard has supplied no evidence of sales from outside ofMissouri.
Yes, that's the judge mocking the size of Shipyard's Missouri sales.Shipyard's attempt to claim that the smoking gun was the fact that Logboat briefly called the yard in front of its taproom "The Shipyard" also gets a pretty decent benchslapping:
The fact that, by July 2015 (when Shipyard apprised Logboat of its infringementsuspicions), Logboat was referring to the grassy area in front of its taproom as The Shipyard,and the fact that the founders thought the name fit with the theme of [their] brewery does notamount to evidence of intent to confuse customers looking to purchase SHIPYARD beer. Thefact that, for a limited time, a grassy area in front of the taproom was described as a yard isunremarkable, and the fact that a brewery named Logboat called an adjacent patch of grass theShipyard is not evidencedirect or indirectof intent to confuse customers of Shipyard beerinto purchasing Logboat beer instead. Indeed, Logboat had ceased describing the yard as theShipyard by January 2016, and thereafter called it The Park insteadwhich evidences adesire to avoid confusion. As discussed above, shipyard is a word in the English language,and the use of the term in reference to a space adjacent to a taproom, rather than in relation toany product purportedly competing with Shipyard, does not constitute even indirect evidence ofintent to confuse.
The Judge also points out that that Shipyard's claim isn't just silly, it's a massive overreach in an attempt to prevent Logboat from even experimenting with different flavored beers:
Finally, Shipyard's contention that Logboat's limited sales of Raspberry Shiphead GingerWheat beer and Jasmine Shiphead Ginger Wheat beer are in direct competition and overlapwith Shipyard's HEAD flavored beers, thereby knowingly expanding its use and intentionallyamplifying the likelihood of confusion, is unconvincing. Logboat did not co-opt Shipyard'sHEAD branding style. It did not call the beers Rasberryhead or Jasminehead. Instead,Logboat added a descriptive element to its own properly registered mark to reflect what Shipyarditself describes as a unique flavor profile . . . . . Accepting Shipyard's argumentwould require precluding Logboat either from adding any new flavors to its ginger wheat beer, orfrom accurately describing any new flavors it adds to its ginger wheat beer. In other words,Shipyard's proposed prohibition against adding any terms descriptive of flavor or aroma to theShiphead Ginger Wheat beer would prevent Logboat from experimenting and innovating withthe beer itselfan unreasonable and untenable result for an action to protect a trademark.
Somewhat strangely, the folks at Shipyard both haven't taken to the judge's lesson on trademark law and still seem to want to exert some control over Logboat's product packaging.
“We still feel it’s an infringement and the judge didn’t,” said Fred Forsley, the founder and president of Shipyard Brewing. He said he plans to call the owners of Longboat Brewing to see if the two companies can work out an arrangement to avoid any confusion in the future.
That sounds like activity that would have been appropriate a year and a half ago, before the lawsuit was ever filed. After all, there has been a longstanding tradition of congeniality within the craft brewing business. But after it attempted to bully them with a stupid trademark lawsuit, why in the world would Logboat bother returning Shipyard's calls?

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posted at: 12:18am on 18-Jul-2018
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