MillerCoors Claps Back at Stone: We Didn't Copy You, You Copied Us

FILED APRIL 12, 2018

Dear Client:

A couple months back Stone Brewing decided to engage in battle with MillerCoors by filing suit against the macrobrewer for allegedly trying to rebrand its Keystone beer as "Stone" [see CBD 02-12-2018].

MillerCoors responded yesterday with a barrage of punches in an 82-page counterclaim that, we feel, evokes Tony Montana slamming down his landline phone yelling: You wanna go to war? We take you to war, okay. Yet, MillerCoors claims "there is no war between these two companies." We'll let you be the judge with the information below...

WE USED STONE FIRST. The most intriguing and perhaps dooming argument (for Stone) presented in the document, is MillerCoors' stance that 'we didn't bite off of you, you bit off of us.' Yep, MillerCoors claims that its "use of 'STONE' and 'STONES' in advertising predates Stone Brewing's use."

The brewer backed this claim with a little history lesson, stating that Coors applied for the trademark KEYSTONE for beer, and was awarded that trademark by the USPTO in 1991, "several years before Stone Brewing decided to name themselves Stone, and nearly a decade before Stone Brewing registered the trademark STONE."

THE RECEIPTS. By the time 1992 rolled around Coors was already using the term 'STONE in "key advertisements," the brewer said and displayed a few of these old ads in the filing. A few years after that Coors started to "embrace the nickname" and began to slap it on outer packaging as well, noting how a 30-rack of Keystone beer became known as 30 'STONES. "Therefore, Coors' use of STONE and STONES predates Stone Brewing's use of STONE," MillerCoors reasons.

"When co-founders Greg Koch and Steve Wagner decided to adopt the moniker Stone Brewing in 1996, Coors was already selling Keystone beer nationally in cases labeled STONES and running marketing campaigns advertising Keystone beer as STONE. MillerCoors did not 'verbatim copy' Stone Brewing's trademark. If anything, it is much more likely that Stone Brewing copied the STONE name from Coors, since Keystone beer was already advertised as such in the market." With that said, MillerCoors asked the court to grant it "the exclusive right" to "STONE" in connection with beer. Need to check with our sources, but that could spell trouble for Stone if the court does.

TOO LATE TO DEBATE NOW. Another interesting argument presented by MillerCoors comes in the form of a laches defense, meaning it's too late to debate now. "Stone Brewing cannot even assert these claims today," MillerCoors says.

Why's that? Well, Stone Brewing had an opportunity to fight this back in April 2010, MillerCoors states, after "Stone Brewing's attorneys objected to MillerCoors' use of 'STONE, STONES, and HOLD MY STONES,' alleging they were likely to cause consumer confusion." MillerCoors refuted the allegations at the time, but "Stone Brewing took no further action until filing this lawsuit eight years later," per counterclaim. That said, "Stone Brewing's claims are clearly barred by laches," MillerCoors argues.

We thought this was over, the brewer says, we have invested "heavily" into Keystone marketing, and continue to use and promote STONE and STONES, and we "cannot be dragged into court eight years later," the brewer concludes.

The last argument we'll cover from the counterclaim is MillerCoors' assertion that Stone Brewing chose to "only include images in its Complaint that misrepresent the look of Keystone cans and outer packaging." MillerCoors says that "every can and every package of Keystone beer is labeled KEYSTONE" and "every Keystone can and every package displays the COORS BREWING COMPANY mark."

CONFUSION… REALLY? "No beer drinker would be confused between these two beers... The available customer data reveals that it is nearly impossible to find a consumer who purchased both Keystone Light and one of Stone Brewing�� s beers in the last year." But if there were "any confusion between these two beers, MillerCoors' rights are superior to Stone Brewing's," MillerCoors says, arguing once again that "MillerCoors used KEYSTONE, STONE, and STONES to sell Keystone beer prior to Stone Brewing's first use of STONE."

STONE IS FRUSTRATED, MILLERCOORS CONCLUDES. "Stone Brewing's misleading and meritless claims show this case is not actually about trademarks. This case is not about 'verbatim copy[ing],' but Stone Brewing's struggle with its new identity as a global mega-craft beer manufacturer. Gone is the small Stone Brewing of old. Today, Stone Brewing is one of the largest brewers in the United States, and its beer is sold on five continents."

So what does MillerCoors want from the court? They want the right to use STONE and STONES in their marketing, of course. But they take it a step further, as we alluded to earlier, asking the court to grant it the "exclusive common law right to use 'Stone' in connection with the sale of beer in the United States." MillerCoors also ask the court to rule that their laches defense is applicable in this matter, as Stone waited eight years to file suit, and bars the brewer from enforcing its trademark.

Stay tuned…

Until tomorrow,

Harry, Jenn, and Jordan

"There is no human problem which could not be solved if people would simply do as I advise." - Gore Vidal

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