Chances are only the most fervent of whiskey drinkers has heard of The Wild Geese Company. At least that appears to be the bet spirits Goliath Barcardi was making when it recently launched a new “untameable” advertising campaign that the much smaller boutique distillery claims infringes on its trademark rights.
Wild Geese holds the trademark to the “untamed” slogan, and, in a recently filed complaint with the U.S. Patent and Trademark Office, claimed Barcardi’s new campaign too closely resembles its own and violates its intellectual property. Though trademark fights are common in the spirits, beverage, and other industries, Wild Geese is taking its dispute with Bacardi to another level. Andre Levy, the chairman of parent company, Avalon Group, has been meeting with congressional staffers and has hired a lobbying firm to push for a change to the laws dictating U.S. intellectual property litigation. Namely, Levy is sick of “the little guys” having to back down in lawsuits with major brand competitors that have infinitely more resources to throw at a lawsuit and wants to level the playing field.
A representative for Bacardi declined comment for this story.
“It’s a dangerous precedent Bacardi is trying to set by using a name and trying to have people associate it with their product,” Levy said. “The problem that presents to entrepreneurs is it really creates a wild West scenario with intellectual property. Because they’re better known, they’re saying there will be no confusion between the two trademarks.”
What Levy described is a legal issue called “reverse confusion,” something that often comes up in trademark infringement cases involving a large company and a much smaller one that originally held the rights to a name or phrase.
“The starting point in any trademark dispute is who used the mark first,” said David Cooper, an intellectual property attorney at Kolisch Hartwell. “There is a whole part of trademark law called reverse confusion when a little company uses something first, then a big company comes in and uses it and then they go for it and they’re not going to stop and the public associates that trademark with the bigger company. So if you got there first, you’ve got some rights to protect. Do they side with the smaller company? In my own experience, most of the time I don’t think that’s true.”
The fact that the law requires companies to protect their rights or risk the potential of losing them after a certain amount of time actually complicates matters for smaller companies like Wild Geese that don’t have the financial resources to compete in the courtroom with massive international conglomerates like Bacardi. Or, to cite another example, a small Kentucky-based distillery that produces Admiral Morgan’s rum and is being sued by Diageo, the parent company of Captain Morgan’s rum.
“The law does require that people have to police their own rights,” Cooper said. “And if you don’t, you end up not being able to enforce your rights later.”
Indeed, Wild Geese has been involved in 37 different intellectual property lawsuits over the last 11 years as either plaintiff or defendant (the company was sued by more recognized Wild Turkey, which felt the Wild Geese name too closely resembled its own.)
There are countless other examples. Starbucks, which aggressively pursues potential trademark infringements by much smaller companies, recently went after a brewery in Missouri for naming one of its beers too similarly to the coffee giant’s Frappuccino drink.
And a small cream cheese producer in Colorado, Honey Smoked Fish Co., recently filed a lawsuit against Einstein Noah Restaurant Group, the parent company of Einstein Bagels, alleging trademark infringement. According to the complaint, after contacting Honey Smoked Fish about potentially offering their salmon cream cheese in its stores, Einstein Noah instead created its own, very similar product without using the Honey Smoked Fish name.
For its part, Wild Geese is looking to end what it perceives as the inequality between large and small brands fighting it out over trademark infringement in the legal system by proposing the wealthier brand pay the legal fees of the smaller company. So far it has launched an online campaign to try and stop Bacardi from using a very similar slogan to its “untamed” trademark, and is looking to legislators to change the laws dictating the resolution of intellectual property fights.
“This is a classic tactic; they’re constantly litigating,” Levy said of large brands out to win trademark rights. “It happens every day and I want to make a difference. I want to change the way litigation is actually funded. I want to create a genuine level playing field. If the other side had to pay for the defense of the attack that would change the whole system. Otherwise, there is no justice.”