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I wish I could say that when I buy wine, my choice depends on sophisticated concepts such as varietal, bouquet, and finish. But in reality, it often comes down to how pretty the label is.
Wine producers are well aware of how easily they can manipulate me and my fellow consumers through appealing packaging. And, judging from a trademark infringement suit the makers of Yellow Tail have filed in U.S. District Court in New York, they are not afraid to defend their branding efforts vigorously.
Casella Wines has invested heavily in making Yellow Tail’s colorful, bounding wallaby known to wine drinkers worldwide. It has registered several trademarks related to the wallaby with the U.S. Patent and Trademark Office. The company alleges that the kangaroo leaping across the label of the lower-priced Little Roo brand, produced by the Wine Group LLC (also known for its Franzia boxed wines), looks similar enough to cause customer confusion. A similar color scheme and other packaging details constitute trade dress infringement, the suit also alleges.
Ultimately, Yellow Tail’s brand is devalued, according to Casella: “[I]n light of its apparent frequent discounting, consumers are likely to believe . . . Little Roo . . . is a rock bottom, cheap version of Casella’s Wallaby Mark brand wine.” This language is nearly identical to that used in an infringement suit Casella filed against Bronco Wine, the makers of Charles Shaw (popularly known as “Two Buck Chuck”), over its Down Under brand in 2009.
In response, the Wine Group denies that a kangaroo is similar enough to a wallaby to be considered interchangeable. Scientifically speaking, it is true that the two Australian marsupials differ in size and coloring. However, the average consumer probably does not realize this; the website critterwines.com, which tracks animals on wine labels, includes Yellow Tail in its kangaroo category, not is wallaby category.
Given the similarity of products and marks at issue, combined with this evidence of actual consumer confusion, Casella may well have a strong infringement case. If victorious, the company could win the damages it seeks, along with a court order to discontinue use of the kangaroo image. But it seems the company can’t help but come out ahead in all this, regardless of the verdict in court. There are at least four other brands that use kangaroos on their wine labels. While none of them are named as parties in the suit, Casella is sending them a message by virtue of filing suit in the first place: stay off of our branding turf — which includes more than one kind of marsupial — or you are next.
At the same time, it is reinforcing the strength of its brand in consumers’ minds by generating somewhat of a publicity buzz. I can’t help but wonder if this lawsuit was never about damages at all, and instead was simply a means of getting some free advertising.
We could consider this a desirable (even if unintended) consequence of the trademark system we have in place. Since trademark law was designed to provide redress in cases where branding gets ripped off, shouldn’t the victim get to counteract some of the negative consequences through some positive PR? On the other hand, the cynic in me can imagine big corporations using the legal system to bully their way to the top of the marketplace. I certainly hope that was not the case here, since I just gave Casella a bunch of free advertising in this post.
– Lauren Gregory
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