In a Tizzy Over Vizzy: Future Proof’s Trademark Infringement Case Against MillerCoors

By: Zoe Deutsch

As the market for hard seltzer, or seltzer pre-made with alcohol, continues to grow, more companies are jumping on the bandwagon and creating their own hard seltzers.^[1] In 2018, a small Texas-based company, Future Proof, LLC, teamed up with mixologist Terance Robinson to create their own line of hard seltzers.^[2] Later, in the Fall of 2019, Future Proof subsequently launched their hard seltzer brand, Brizzy.^[3] Future Proof then registered “Brizzy” with the United States Patent and Trademark Office. As a result, Future Proof is the exclusive owner of the “Brizzy” mark for alcoholic beverages (except beer), alcoholic pre-made beverages, and alcoholic cocktails.^[4]

Alcoholic beverage giant MillerCoors also created its own hard seltzer, named “Vizzy.”^[5] MillerCoors intends to launch this product in March of 2020, but Future Proof is alleging trademark infringement against MillerCoors.^[6] Future Proof alleges that the name and concept of Vizzy is substantially similar to Brizzy and is thus likely to confuse consumers.^[7] Before Vizzy’s announcement, a MillerCoors executive acknowledged that MillerCoors was aware that Brizzy was already in distribution.^[8] With this lawsuit, Future Proof hopes to stop the introduction of Vizzy into the hard seltzer market.^[9]

Future Proof hopes to use the protections afforded by the Lanham Act in stopping MillerCoors from continuing to produce Vizzy.^[10] Seminal 9th Circuit caseAMF Inc. v. Sleekcraft Boatsestablished a variety of factors for determining whether confusion between two related goods is likely: (1) the strength of the mark, (2) the proximity of the mark, (3) the similarity of the mark, (4) evidence of the actual confusion, (5) marketing channels used, (6) type of good and the degree of care likely to be exercised by the purchaser, (7) the defendant’s intent in selecting the mark, (8) the likelihood of expansion of the product lines.^[11] In this case, most of the factors sway in Future Proof’s favor. In its Complaint, Future Proof argues that Vizzy infringes on Brizzy’s trademark because not only do the two names sound extremely similar, but the fact that they are also both hard seltzers will inevitably lead to consumer confusion.^[12] Furthermore, similar marketing channels will likely be used for both products and there is the potential for the expansion of product lines.Overall, Future Proof has a strong claim of trademark infringement because most of the Sleekcraftfactors are met. To truly prevail, Future Proof needs to demonstrate that customers will accidentally choose Vizzy over Brizzy and that MillerCoors had the intent to create a deceivingly similar mark in choosing “Vizzy.”

As the month of March looms ahead, Future Proof will need to work quickly to ensure that MillerCoors’ Vizzy does not enter in the market. Although it is unlikely that MillerCoors will altogether stop production on Vizzy, this case could potentially be settled with a simple, albeit expensive, name change.

^[1]See Peter Frost, MillerCoors Plans to Launch Vizzy, a Hard Seltzer with the Antioxidant Vitamin C,in 2020, Behind the Beer(Dec. 9, 2019), https://www.millercoorsblog.com/news/millercoors-plans-launch-vizzy-hard-seltzer-antioxidant-vitamin-c-2020.

^[2]See Complaint at 5, Future Proof Brands, LLC v. Molson Coors Beverage Co., No. 1:20-cv-00144 (W.D. Texas Feb. 6, 2020) (explaining the company’s beginning and subsequent success of Future Proof’s various products geared towards drawings consumers away from craft beer and towards hard seltzers).

^[3] Id.at 6.

^[4]Id.

^[5]See Margaret Naczek, MillerCoors Plans Launch of New Hard Seltzer Drink,Vizzy, in March, Milwaukee Bus. J. (Dec. 10, 2019, 9:42 AM), https://www.bizjournals.com/milwaukee/news/2019/12/10/milercoors-plans-launch-of-new-hard-seltzer-drink.html.

^[6]See id.

^[7]See Bettie Cross, Austin Company Files Lawsuit Against Beverage Giant Over Hard Seltzer Trademark, CBS Austin (Feb. 7, 2020),https://cbsaustin.com/news/local/austin-company-files-lawsuit-against-beverage-giant-over-hard-seltzer-trademark.

^[8]See Complaint at 2, Future Proof Brands, LLC v. Molson Coors Beverage Co., No. 1:20-cv-00144 (W.D. Texas Feb. 6, 2020).

^[9]See id. at 1.

^[10]The Lanham Act, 15 U.S.C. §§ 1051, et seq.(2002).

^[11]AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-349 (9th Cir 1979). See Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir. 2008).

^[12]See Complaint at 11-12, Future Proof Brands, LLC v. Molson Coors Beverage Co., No. 1:20-cv-00144 (W.D. Texas Feb. 6, 2020).