I’m forever blowing bubbles. Pretty bubbles in the air.
/I’m Forever Blowing Bubbles, music by John Kellete, lyrics credited to Jean Kenbrovin

“Hard seltzer” has been one of the brightest product categories in a declining market for alcoholic beverages. As reported by Bloomberg, “Alcohol drinkers are becoming more and more concerned about health and wellness, and are becoming more involved in mindful drinking. Hard seltzers are meeting these consumer needs.”

What is hard seltzer? It’s carbonated water infused with 5% alcohol and flavorings. It has fewer carbs and calories than beer. Hard seltzer drinkers tend to be younger, have higher incomes and skew more female than traditional beer drinkers, according to Bloomberg.

The man generally credited for sparking the hard seltzer craze is Von Mandl, a wine maker from Canada. His company’s WHITE CLAW hard seltzer currently accounts for 55%, with annual sales hovering at $1.6 billion. WHITE CLAW hard seltzer has been such a success that Mandl has been able to devote attention to his first passion, wine making, turning out bottles that sell for upwards of $250.

With such a lucrative and expanding market, it was only a matter of time until hard seltzer bubbled up into a trademark dispute. In a decision handed down yesterday, a Texas federal judge refused to block mega beer-maker Molson-Coors from selling its new VIZZY brand hard seltzer, scheduled to hit the market this month. The suit was brought by a much smaller hard seltzer company that has been selling the trendy beer alternative under its federally registered BRIZZY trademark.

With the products poised to compete head to head in the growing hard seltzer marketplace, the only real issue for the court to decide was whether Molson-Coor’s new brand VIZZY was too close for comfort to prior mark BRIZZY –stated in legal terms, are BRIZZY and VIZZY so similar that an appreciable number of ordinary consumers are likely to be confused?

In denying BRIZZY’s motion for a preliminary injunction–a temporary ban on VIZZY sales while the case goes ahead to trial–the judge found that “Plaintiff cannot realistically hope that by obtaining a mark based on and characterized dominantly by one word (‘fizzy’), it can prevent competitors from doing the same.” Miller-Coors swayed the judge with evidence of many other trademarks on the market derived from the word “fizzy.” The court was further persuaded that confusion is unlikely because the parties’ cans look noticeably different. Even though the court recognized that “V” and “B” are “easily confused,” it agreed with Molson-Coors that the “logos, font, coloring, cans, and packaging could not be more different.”

Law 360 reported today that the plaintiff intends to move forward with the case and is seeking a permanent injunction and unspecified damages.

The case is Future Proof Brands LLC v. Molson Coors Beverage Co. and MillerCoors, case number 1:20-cv-00144, in the U.S. District Court for the Western District of Texas.

Stay tuned to see whether this case will yet lead to a substantial verdict in favor of the David against an industry Goliath or whether BRIZZY will again fall flat. Until then, stay thirsty for trademarks, my friends. And drink responsibly.