Bud Light Fan Cans Seem To Skirt Edge Of Court Ruling

Posted by Marty Brochstein on August 21, 2009

An article in the Wall Street Journal today highlights complaints registered by some collegiate authorities about the “Fan Can” promotion recently launched by Anheuser-Busch’s Bud Light brand. (Seehttp://online.wsj.com/article/SB125081310939148053.html)

The promotion involves the beer being marketed in cans of 27 different color combinations that mirror the colors used by major colleges. Obviously, the specific color combos are being marketed in the same geographic area as the corresponding school. A-B says it only markets to those of a legal drinking age.

The Bud Light tactic seems to tiptoe to the edge of a U.S. Court of Appeals ruling late last year that a finding of trademark infringement can be based on the use of “color schemes along with other indicia” that make it obvious that the school is being referenced. The ruling came in a case brought by four schools — LSU, Ohio State, Oklahoma and Southern California — against a t-shirt manufacturer who, among other styles, marketed a shirt in the LSU purple and gold with the phrase “Sugar Is Sweet” and the score by which LSU had won the Sugar Bowl game.

The court ruled that using the colors themselves wouldn’t be grounds enough for an infringement finding without the context provided by the words on the shirt. The Bud Light marketers are using only color combinations, and offering no other context.

Is A-B taking a smart course here, given the objections from several schools whose colors are being used?