Bud Light (which currently boasts a 1.23/5 rating on RateBeer.com) is known for being cheap; light on calories and flavor; and, according to their most recent spate of commercials, advertising, and packaging, having absolutely nothing to do with corn syrup. This is in contrast to its competitor MillerCoors, who it alleges uses corn syrup in both Miller Lite and Coors Light beer.
If you watched the Super Bowl on February 3, you probably saw the Bud Light “Special Delivery” commercial, featuring a group of Bud Light noblemen (and a wizard) attempting to return a large barrel of corn syrup that was mistakenly delivered to their castle. Notably, the barrel is much larger than the Bud Light castle’s own barrels, labeled “water,” “rice,” barley,” and “hops.” They eventually return it to the Coors Light castle (Miller Lite’s corn syrup was apparently already delivered), and the commercial ends with a labeled glass of Bud Light and the text “Brewed with no Corn Syrup.” Anheuser-Busch aired several iterations of this commercial with similar text and implications about MillerCoors’ products using corn syrup and Bud Light staunchly opposing such an unnatural ingredient (despite using it in several of their “value brand” products like Stella Artois Cidre).
The day after the Super Bowl, the search term “corn syrup” was ranked at its peak popularity according to Google Trends:
Clearly, consumers were taking notice with this and similar searches, such as “Coors Light corn syrup,” “Miller Lite corn syrup,” and, interestingly, “Why [is] high fructose corn syrup bad?”
MillerCoors’ attorneys were paying attention too, filing claims against Anheuser-Busch on March 21 for false advertising and trademark dilution.[1]
The thrust of MillerCoors’ claim is that Anheuser-Busch launched a false advertising campaign “in order to deceive beer consumers into believing that there is corn syrup and high-fructose corn syrup in Miller Lite and Coors Light to increase sales of Bud Light.”[2] The truth, according to MillerCoors, is that while it uses corn syrup in the fermentation process,[3] none of it ends up in the final product.[4] Meanwhile, corn syrup appears in several of Anheuser-Busch’s products—the complaint rattles off several.
Most people in 2019 have a pretty visceral reaction to hearing “high fructose corn syrup.” MillerCoors claims that the use of the term “corn syrup” in Bud Light’s ads was to purposely conflate the two in viewers’ minds, making health-conscious consumers less likely to drink Miller Lite or Coors Light for fear of ingesting high fructose corn syrup.
MillerCoors makes two claims—a false advertising claim and a trademark dilution claim, both of which are outlined in § 43 of the Lanham Act.
Though the complaint doesn’t go into the legal specifics of each claim, it’s likely MillerCoors is concerned with the following section for its false advertising claim: Under § 43(a)(1)(A)-(B), a defendant can be found liable for use of a word (or false or misleading description) in commerce likely to cause confusion in commercial advertising that misrepresents the nature, characteristics, or qualities of the plaintiff’s goods. There’s a high bar of a materiality requirement—the false statement has to have been material to the consumer’s decision to purchase (or, more likely here, to not purchase) the goods. MillerCoors could probably marshal some compelling evidence about consumers’ aversion to any and all things related to corn syrup, which might’ve swayed their decision to purchase Bud Light over MillerCoors’ products.
To establish a false advertising claim in the Second Circuit, the plaintiff must demonstrate that the statement in the challenged advertisement is false. This is tricky because the Lanham Act “bar[s] statements about competitors that are false, but courts have said the law also prohibits ‘literally true’ statements that nonetheless mislead or deceive consumers. Other courts have ruled that less direct statements can be proven false by ‘necessary implication,’ based on an assessment of broader context.” On this point, MillerCoors could try to show that although the commercials are literally true in saying Miller Lite and Coors Light “use” and “are brewed with” corn syrup, that wording is designed to mislead and deceive viewers into thinking corn syrup is in the final product. If it had evidence of consumer deception, this claim could weigh in its favor.
The dilution claim is interesting as well. The complaint only cites § 43(c) of the Lanham Act but doesn’t specify whether this is a dilution by blurring or dilution by tarnishment claim. Language in the complaint suggests it could be either or both.[5] The first hurdle is the famousness requirement, which the MillerCoors products at issue likely meet given the duration and extent of the trademarks’ use, the amount of sales the company does nationwide, and recognition and registration of the marks. The Lanham Act has some factors for determining dilution by blurring—an association that impairs the distinctiveness of the famous mark—but courts don’t often think of blurring as its own cause of action. It’s often lumped in with a likelihood of confusion infringement analysis, and circuits are split on exactly what evidence plaintiffs need to show dilution by blurring. Dilution by tarnishment has no factors in the Lanham Act; instead, it’s a vague idea of use of the mark that somehow harms the brand or reputation.
For either of these dilution claims, Anheuser-Busch could argue a defense under § 43(c)(3)(A)(i): its conduct was not actionable as dilution because it’s simply nominative fair use (using the plaintiff’s trademark to refer to the plaintiff) in advertising or promotion that permits consumers to compare goods or services. Anheuser-Busch had to use MillerCoors’ trademarks, so consumers could compare their products. There’s nothing to suggest sponsorship or endorsement (indeed, Bud Light is painted as the complete opposite of Miller Lite and Coors Light), but MillerCoors could argue that the commercials’ use of the mark wasn’t limited to what’s reasonably necessary, given the fact that the MillerCoors’ logos, packaging, and brand names appear prominently in each ad.[6] The dilution claim(s) could go either way.
MillerCoors has requested the court enjoin Anheuser-Busch from airing the commercials and spreading what it calls “the Campaign’s false and misleading claims.”[7] Additionally, it has asked the court to require Anheuser-Busch to disseminate corrective advertising and to award damages and attorneys’ fees to MillerCoors.
Paige Geier is a J.D. candidate, 2020, at NYU School of Law.
[1] Complaint & Demand for Jury Trial at 2, MillerCoors, LLC v. Anheuser-Busch Co., LLC, No. 19-cv-218 (W.D. Wis. Mar. 21, 2019).
[2] Id. at 1.
[3] Id. at 4.
[4] MillerCoors Complaint at 2.
[5] Id. at 35 (“AB’s use of the COORS LIGHT and MILLER LITE trademarks in its Campaign has diluted and damaged, and is likely to continue to dilute and damage, the distinctive quality and tremendous goodwill of MillerCoors famous COORS LIGHT and MILLER LITE trademarks”) (emphasis added).
[6] New Kids on the Block v. News Am. Publ’g Inc. 971 F.2d 302, 308 (9th Cir. 1992) (describing the tripartite test to determine nominative fair use).
[7] MillerCoors Complaint at 36.