After losing its bid for an order enjoining Molson Coors from using VIZZY for hard seltzer, Future Proof—owner of the trademark BRIZZY for hard seltzer—turned to the Fifth Circuit for relief. It found little. After that, the District Court refused Molson Coors dismissal bid. A brief recap on these developments is below.
<u>The Fifth Circuit</u>
The Fifth Circuit agreed with Future Proof that the District Court had wrongly relegated its BRIZZY mark to descriptive status, holding instead that it is suggestive. But the relief stopped there. Despite recognizing BRIZZY as a suggestive mark, the Fifth Circuit said suggestive marks are “comparatively weak” and that BRIZZY was no different. Like the District Court, the Fifth Circuit also was persuaded that the number of other “IZZY” marks for carbonated beverages rendered the BRIZZY mark relatively weak, that the differences in the parties’ packaging distinguished the marks sufficiently, and that the single instance of purported actual confusion was too fleeting to tip the scales in Future Proof’s favor. It concluded that Future Proof was unlikely to win its trademark claims, upheld the District Court’s refusal to grant a preliminary injunction.
The District Court
Despite its earlier skepticism that Future Proof could prove its case, the District Court refused Molson Coors' motion to dismiss. Guided by the Fifth Circuit's ruling that BRIZZY is suggestive--not descriptive--the District Court determined that Future Proof properly alleged its mark is distinctive and that Molson Coors' use of VIZZY creates a likelihood of confusion. It did signal that Future Proof may still have an uphill battle in front of it, remarking that the standard for a motion to dismiss is "exceedingly easier to meet" than that for a preliminary injunction. If there is no settlement, the case will soldier on through discovery, perhaps to a motion for summary judgment. We'll keep you posted!