Debunking the myth that a group of attorneys can never agree on anything, 30 attorneys general recently sent a letter to the administrator of the federal Alcohol and Tobacco Tax and Trade Bureau, requesting that the organization investigate the aggressive marketing campaigns that surround the promotion of new energy drinks that mix caffeine and alcohol (a trend started by want-to-have-it-all professionals whose drink of choice is a Vodka and Red Bull cocktail).

The recent boom in energy-alcohol drinks, coupled with the super-sweet alcohol “soft drinks” is sparking a trend by consumers of drinking alcohol beverages designed to feel alcohol-free. If nothing else, the proliferation of drinks like Anheuser Busch’s Bud Extra, Miller Brewing Company’s Sparks, and other alco-energy drinks like Charge and Liquid Core, make clear that such drinks are speeding up the cash conveyor for large companies.

AGs nationwide are concerned that the aggressive position marketers are taking with these drinks, coupled with the “outlandish” health-claims related to the consumption of these energy-pops are misleading. Moreover, many AGs believe that the target market is underage drinkers. Slogans like “You can sleep when you’re 30” and references to “pulling an all-nighter,” appear, at least in the minds of the attorneys general, to be focusing on the under 21 crowd.

Practice Pointer: Even when a marketing campaign is legally sound, and regardless of the product, when companies engage in advertising that is directed at a younger crowd, they run the risk of having parents and watchdog groups complain if the message, however understated, suggests a behavior that is either illegal, or promotes unhealthy habits. Attorneys should advise their clients to be prepared for fallout when launching aggressive marketing campaigns.

Tiseo Architects, Inc. v. B &B Pools Serv. and Supply Co., No. 06-1819, 2007 U.S. App. LEXIS 17894 (6th Cir., July 20, 2007)

This case illustrates the long-standing, but sometimes forgotten, copyright principle: that one must first analyze whether the similarities between defendant’s and plaintiff’s works pertain to original elements of plaintiff’s work. If they do not, then there is no infringement.

First, the facts: B&B Pools hired Tiseo Architects to prepare design drawings for its store remodel; then later hired a new architect, Olson, to prepare the construction plans. Tiseo sued for copyright infringement.

The Sixth Circuit affirmed the lower court’s finding of no infringement. Even when works are very similar and access to plaintiff’s work is obvious, defendant’s work must be substantially similar to protectable elements of plaintiff’s work. Filtering out the unoriginal, unprotectable elements of Plaintiff’s plans (such as elements dictated by the client or zoning regulations), the court reached the logical conclusion: there are not a lot of ways for an architect to draw plans for an existing office.

Practice Tip: Practitioners should take care to fully analyze the elements of their infringement cases. The result in this case might have been different if Plaintiff had briefed the similarities between the protectable elements of the drawings, which, according to the Sixth Circuit Court, it did not do.

The latest trend in customer loyalty and brand value is the creation of the Limited Edition gift card. Currently, consumers can purchase the gift card for the value of the card. When the value is depleted, the gift card is theirs to keep. The retention by the consumer of the commemorative card is associated with a positive perspective on the client.

Recently, the Texaco Company has begun selling what it calls commemorative gift cards, featuring the image of Juan Pablo Montoya on the cards and touting it as a limited edition card. Currently, the special edition card costs no extra.

Some state laws forbid the charging of a sizeable premium for a gift card. This new twist, however, paves the way for companies to recoup any losses they may rack up in the creation of the cards themselves. So long as the card is legally a “limited edition,” and there is some real value associated with collecting the card, companies may start trying to push the envelope with regard to charging a premium for gift cards. It appears that the “free drinking glass with fill-up” days are long over.

Last Wednesday, Johnson & Johnson filed suit against the Red Cross, alleging trademark infringement of J&J’s RED CROSS design by the Red Cross for products licensed by the Red Cross and sold to the public.

J&J doesn’t appear to dispute the Red Cross’ use of the mark for disaster preparedness, but claims that its use cannot extend to commercially available products, such as first aid kits, something J&J has been selling since at least as early as 1903 (and possibly 1887). J&J claims that the 1900 Charter by Congress did not give the Red Cross the right to sell commercial products. The Red Cross, on the other hand, points to language in the Charter that allowed it to register its emblem (red cross on a white background) in every class at the U.S. Patent and Trademark Office, as well as language in the Charter that allows it to carry out other activities consistent with its Charter purposes. Supplying the public with various products related to safety, the Red Cross contends, is completely within the course and scope of its mandate and the Charter. Such a position is making J&J see red.

If the Red Cross’ public information is correct and it has for 100-plus years been selling first aid kits for over 100 years openly, and with the knowledge of J&J, this writer thinks a laches defense might well carry the day. If J&J leaps that hurdle, then perhaps a showing of lack of confusion for the past 100 years is sufficient to quiet the company. Nabisco, Inc. v. PF Brands, Inc. 191 F. 3d 208 (2d Cir. 1999)Surely, the proliferation of third party “cross” marks, coupled with both entities’ longstanding histories has over time educated consumers to the distinction between the two marks’ use. Sun Banks of Fla., Inc. v. Sun Fedl. Sav. & Loan Ass’n. 651 F.2d 311 (5th Cir. 1981); Local Trademarks, Inc. v. Handy Boys, Inc., 16 U.S.P.Q.2d 1156 (TTAB 1990).

Despite the fact that the marks are identical, it’s not difficult to tell the difference when we are presented with each; much like pornography, we know which is which when we see it. What is likely making J&J see red is the potential loss of market share rather than any real concern of confusion. And here we thought trademarks were for consumer protection.