Earlier this month, Stone Brewing Company (“SBC”), a craft brewery in Southern California, sued Molson Coors Brewing Company and MillerCoors LLC (together “MillerCoors”) for trademark infringement and related unfair competition claims arising from MillerCoors’ use of the STONE® trademark in advertising its KEYSTONE beer. See Stone Brewing Co., LLC v. Molson Coors Brewing Company, MillerCoors LLC, Case No. 18CV0331 (BEN) (JMA).

SBC alleges that Keystone’s new can design copies and infringes the STONE® trademark by dropping the signature rocky mountain imagery and putting heavy emphasis on the “Stone” in “Keystone.” SBC alleges that MillerCoors is trying to trade off the goodwill associated with the incontestable STONE® trademark and the quality and reputation of SBC’s craft beers. SBC touts its consistent and prominent use of STONE® on each of its beers even with increasing growth in the number and variety of beer offerings by the company. The Complaint cites various social media and internet references including a blog post that advertised a can “that plays up the ‘Stone’ nickname,” a nickname that SBC alleges is new and self-serving. The Complaint includes a side-by-side comparison of the old can and new can (depicted above).

And while “KEY” is still being used and can be seen if you rotate the can, SBC believes that it is only a matter of time before the “KEY” is dropped entirely. According to the complaint, “MillerCoors has long coveted the STONE® mark.” In fact, MillerCoors tried to register STONES as a trademark for Keystone beer in 2007 but SBC’s STONE® trademark posed an obstacle due to a likelihood of confusion.

In a marketplace where goods are sold in restaurants and bars, aural similarity is important, as noted in our prior post “TTAB rejects SINFUL ZINFANDEL as confusable with ZINFUL.” If a consumer tries to order a Keystone by referring to its purported nickname “Stone,” which is aurally identical to the registered mark STONE®, isn’t confusion likely?

The industry is taking notice of this case. One example of social media influence is an Instagram hashtag #TrueStonevsKeystone posting a variety of images of STONE® products and the new Keystone packaging. And while we are surprised that there has been no preliminary request for immediate injunctive relief, we expect further filings soon and will report back with developments as this case continues to brew.