On August 29, 2014, Long Trail Brewing Company (Vermont) filed suit against Bent Paddle Brewing Company (Minnesota) alleging, in part, trademark infringement and dilution of Long Trail’s registered and common law rights in their “distinctive logo design depicting a silhouette of a person hiking while wearing a backpack and carrying a walking stick or hiking pole (the ‘Hiker Logo’),” and of their trade dress. (Here is a link to the Complaint).

Standard for Likelihood of Confusion

As the suit was filed in Vermont (part of the 2nd Circuit), the court will apply the Polaroid factors, which include (in no particular order): (1) Strength of the mark; (2) Similarity of the marks; (3) Proximity of the products and their competitiveness with one another; (4) Evidence that the senior user may “bridge the gap” by developing a product for sale in the market of the alleged infringer’s product; (5) Evidence of actual consumer confusion; (6) Evidence that the imitative mark was adopted in bad faith; (7) Respective quality of the products; and (8) Sophistication of consumers in the relevant market. This article focuses on the first two listed factors as they are the most interesting and relevant.

Similarity of the Marks

The comparison of the plaintiff’s mark, or marks in this case, and the allegedly infringing use is at the center of any likelihood of confusion analysis. In this case, the plaintiff owns several registered trademarks, and claims rights to similar common law marks and designs.

Long Trail alleges, “Bent Paddle has offered for sale, distributed, advertised, and promoted its ‘Trail Series’ beers utilizing a silhouette image of a hiker wearing a backpack and carrying a walking stick or hiking pole. . . . Bent Paddle’s hiker logo is virtually indistinguishable from the Hiker Logo used by Long Trail, as shown in the comparison below. . . .”

Long Trail’s Hiker Logo Bent Paddle’s Logo

While the two logos may seem similar (although they are far from virtually indistinguishable, in my opinion), it appears that Long Trail’s rights in the above mark are limited to common law rights, which only provide Long Trail with enforceable rights in the geographic areas where they have actually used the mark in commerce. However, it does not appear that the products are sold in the same geographic areas, despite Long Trail’s allegation that “Bent Paddle conducts business in the State of Vermont by placing goods, including the products at issue in this action, in the stream of commerce with knowledge that they may be sold in Vermont, because said goods have been shipped to Vermont. . . .” According to Long Trail’s own website, Long Trail beer is not available within 100 miles of Bent Paddle’s zip code. Also, according to Bent Paddle’s website, they only distribute their beer to a few areas in Minnesota and Wisconsin.

Instead, it is likely that Long Trail will have to rely on their numerous federally registered trademarks (which provide them with the right to sue throughout the US), including:

Mark Goods Reg. No. Reg. Date Beer, ale 3,649,390 July 7, 2009 Beer 3,449,368 June 17, 2008 Ales 2,015,088 November 12, 1996

As you see, Long Trail’s registered marks are not nearly as “virtually indistinguishable” from Bent Paddle’s logo as the comparison with the Hiker Logo above (the hikers are not red-colored with a white background or surrounded by a red circle). That said, there are certainly some substantial similarities between the marks, and the court will weigh these similarities against the other Polaroid factors to determine whether a likelihood of confusion exists.

Strength of the Mark

The strength of a mark correlates to its ability to identify the source of the trademark owner’s goods in the marketplace. Here, the Hiker Logo is an arbitrary mark, as it (simply said) does not directly or indirectly provide any information about the underlying product. Arbitrary marks are deemed to be inherently strong, and enjoy a wider scope of protection than descriptive marks.

Further, Long Trail is a large and successful beer manufacturer, and they appear to have been relatively consistent at using some form of their Hiker Logo on their beer bottles and packaging for several years. Their substantial amount of sales, significant expenses in advertising and marketing, and solid reputation in the marketplace point to the conclusion that their Hiker Logo is a strong mark.

One other consideration that may weigh against Long Trail is whether there is substantial third party use of the Hiker Logo. A case could certainly be made that the hiker logo is part of the public domain and it would be unfair to preclude others from its use. For instance, similar logos appear on street signs throughout the country:

While these instances of third-party usage are not directly related to beer, they can serve to weaken the mark. There is a case to be made that the average relevant consumer, upon seeing the Hiker Logo, would affiliate the logo with hiking in general, rather than with Long Trail. Such an association would lend itself to the conclusion that there is at least a lessened likelihood of confusion between the marks at question.

Conclusion

Given the geographic separateness of the parties, the strength of the marks, and the limited scope of the analysis (i.e., only comparing the registered marks to the allegedly infringing use), I believe that the likelihood of confusion analysis is very close. If Long Trail had a federal registration for the version of the Hiker Logo depicted in the side-by-side comparison with Bent Paddle’s mark, I believe they would have a much easier case to prove. That said, I expect both parties would be best off to negotiate a redesign of Bend Paddle’s logo that is even more distinct from the Hiker Logo (perhaps left-facing and blue?).