Were you as shocked as I was to see the new Bud Lite ads concerning corn syrup in Miller Lite’s brew? And in a Super Bowl ad no less? The very idea of a sweetener is unsettling enough, but corn syrup has an even worse reputation than straight sugar.
It turns out, of course, that there is a lot more to it, and its likely to be hashed out in the Western District of Wisconsin on a trademark action between the beer giants. And what better locale than Wisconsin for a beer battle? It’s Millercoors, LLC v. Anheuser-Busch Companies, LLC (read here) on an oft-forgotten aspect of trademark law.
It’s pretty self-evident that the Lanham Act would prohibit false statements in advertising, particularly when referencing a competitor. But there’s more, and a fine distinction that can be easily passed over. The Lanham Act (15 U.S.C. 1125) prohibits any “false or misleading description of fact” which “misrepresents the nature, characteristics, qualities…of his or her or another person’s goods, service or commercial activities.” The key terms above are underlined. First by general rules of legal construction, the fact that “false or misleading” are both mentioned should suggest that there is a class of “misleading” statements that are not necessarily false. Second, and more concretely, the courts have held many times (See an example form the Second Circuit here) that “misleading” statements do not have to be factually true, but only to have communicated a false or misleading message. Obviously, the test is a little higher than for factually true statements, but it’s not an impossible reach. Given the dramatic impact of these beer commercials, the Bud Light king is well-advised to lawyer up.
THE BUSINESS TAKE AWAY: If you’ve been damaged by a commercial rival throwing shade on your trademark or service mark, don’t limit yourself to considerations of the “factual truth” of the statements. Look behind the words to the message, there may be hope for a trademark claim after all.