Future Proof Brands, L.L.C. v. Molson Coors Bevera
982 F.3d 280
5th Cir.2020Background
- Future Proof Brands sells a hard seltzer called Brizzy (BRIZZY registered with the USPTO in 2019); Molson Coors sells a competing seltzer called Vizzy.
- Brizzy is marketed as a “seltzer cocktail,” sold in 12‑packs at retail; Vizzy is branded around Vitamin C and “fizzy” attributes and features different can art and labeling.
- The marks share the common phonetic/letter root “‑IZZY”; several third parties use similar “izzy/fizzy” formulations in beverage branding.
- Future Proof sued for trademark infringement and moved for a preliminary injunction to enjoin Vizzy’s sale and marketing.
- The district court denied the preliminary injunction; Future Proof appealed. The Fifth Circuit reviews denial for abuse of discretion and affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Strength/type of mark (first digit) | BRIZZY is inherently distinctive (arbitrary or at least not weak); registration warrants weight. | BRIZZY is suggestive/weak, undermined by widespread third‑party use of the “IZZY” root. | Court: BRIZZY is suggestive (not descriptive or arbitrary) and weak in market standing due to third‑party usage; this disfavors injunction. |
| Similarity of marks (second digit) | BRIZZY and VIZZY differ only in initial consonant; aural similarity and identical “IZZY” root create high likelihood of confusion. | Marks viewed in marketplace context (packaging, labels, text, art) show meaningful visual/packaging differences; aural similarity is considered but not dispositive. | Court: Similarity favors plaintiff only marginally; packaging/contextual differences and limited aural confusion weigh against strong finding of similarity. |
| Defendant's intent (sixth digit) | Coors knew of Brizzy and adopted a near‑identical mark, evidencing bad intent to trade on Brizzy’s goodwill. | Mere awareness is insufficient; no evidence Coors copied packaging, distribution or sought to trade on Brizzy’s reputation. | Court: No evidence of bad intent; intent factor does not support injunction. |
| Actual confusion & consumer care (seventh and eighth digits) | A wholesaler once confused the marks; low price and typical purchasing context (bars/quick buys) imply low consumer care. | The wholesaler incident is an isolated, fleeting mix‑up; no evidence confusion affected consumer purchases or that consumers exercise low care. | Court: The single wholesaler mix‑up is fleeting and insufficient to show actual confusion; no evidence on consumer care—these digits do not support injunction. |
Key Cases Cited
- Streamline Prod. Sys., Inc. v. Streamline Mfg., Inc., 851 F.3d 440 (5th Cir. 2017) (defendant intent can alone justify likelihood of confusion).
- Viacom Int’l v. IJR Cap. Invests., L.L.C., 891 F.3d 178 (5th Cir. 2018) (actual confusion is the best evidence of likelihood of confusion).
- Am. Rice, Inc. v. Producers Rice Mill, Inc., 518 F.3d 321 (5th Cir. 2008) (overview of likelihood‑of‑confusion review standard).
- Sun Banks of Fla., Inc. v. Sun Fed. Sav. & Loan Ass’n, 651 F.2d 311 (5th Cir. 1981) (mark‑strength spectrum and market standing inquiry).
- Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983) (tests for descriptiveness vs. suggestiveness).
- Springboards to Educ., Inc. v. Hous. Indep. Sch. Dist., 912 F.3d 805 (5th Cir. 2019) (widespread third‑party use undercuts suggestive mark’s strength).
- Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221 (5th Cir. 2009) (assess marks in marketplace context including labels/packaging).
- PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535 (5th Cir. 2005) (preliminary injunction is an extraordinary remedy).