Voss Sues over Bottle Trade Dress and Trademark
Voss of Norway has commenced an action against High Liquors LLC for trademark and trade dress infringement of its bottles design. Voss sells artesian drinking water in a cylindrical bottle with straight, vertical sides. Voss has registered the design of its bottles with the US Patent & Trademark Office. High Liquors LLC sells whiskey, vodka, and rum in cylindrical bottles. Click on this link to view High Liquors bottles http://www.highliquors.com. The actual Voss product can be seen here: https://www.vosswater.com/index.php/products/
Voss’s Trademark Registration Number 3,259,981 is illustrated below:
Do you think the bottles look similar?
To establish a violation of the Lanham Act (Trademark Infringement) the Voss must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the High Liquor’s use of the mark to identify goods or services causes a likelihood of confusion. Here it seems pretty clear that Voss has a legally valid mark and that it owns the mark. This case will, therefore, be determined based upon the likelihood of confusion analysis.
Determining if a likelihood of confusion exists is the most subjective determination in an infringement analysis. Likelihood of confusion is established when it is determined that consumers viewing the allegedly infringing mark would likely assume that the product or service it represents is associated with the source of a different product or service identified with a similar mark. The Courts have laid out a number of factors to analyze the likelihood of confusion analysis:
- Similarity in the overall impression created by the two marks (including the mark’s look, phonetic similarities, and underlying meanings);
- Similarities of the goods and services involved (including an examination of the marketing channels for the goods);
- Strength of the plaintiff’s mark;
- Any evidence of actual confusion by consumers;
- Intent of the defendant in adopting its mark;
- Physical proximity of the goods in the retail marketplace;
- Degree of care likely to be exercised by the consumer; and
- Likelihood of expansion of the product lines.
An aspect of infringement or likelihood of confusion analysis is the channels of trade. Voss alleges that consumers will be confused as the goods are sold in the same channels of trade. Voss contests that consumers will be confused as its bottles are distributed by alcoholic distributors and are sold in bars, clubs, and at liquor and wine shops. In order to determine likelihood of confusion the courts will need to determine (1) if artisanal water and liquor are similar goods; (2) if the channels of trade are similar; and (3) the overall impression made by the two marks.
More information on this can be read Here.