Future Proof Brands, L.L.C. (“Future Proof”) filed a trademark infringement action against Molson Coors Beverage Co. (“Coors”) objecting to its use of the mark Vizzy. Future Proof used and registered the mark Brizzy as a brand of hard seltzer containing carbonated water, alcohol and in most cases fruit flavors. When Coors branded its hard seltzer Vizzy, Future Proof objected and sued seeking an injunction. Coors denied infringement claiming that it branded Vizzy by amalgamating its two prominent attributes, namely, vitamin C and fizzy. It noted that numerous other companies have carbonated products with a variant of fizzy, including Fizzy Pink Lemonade, Fizzy Mango, Fizzy Fox, Fizzy Juice, and others. After the district court denied issuing a preliminary injunction, Future Proof appealed.
The Fifth Circuit analyzed the digits of confusion, including (1) the type of mark infringed, (2) similarity between the marks, (3) similarity of the products, (4) identity of the retail outlets and purchasers, (5) identity of the advertising media used, (6) defendant’s intent, (7) evidence of actual confusion, and (8) the degree of care exercised by the potential purchasers. The district court had concluded that the third, fourth and fifth digits favored granting the injunction. Neither party contested that decision, so the Fifth Circuit did not consider those digits, but focused on the remaining digits.
The district court had found the mark Brizzy to be descriptive. However, the Fifth Circuit disagreed concluding Brizzy is not descriptive because it does not convey an immediate idea about the characteristics of hard seltzers. The Fifth Circuit found that Brizzy is suggestive because consumers must exercise imagination and infer that Brizzy is a play on fizzy and not on other words. However, the Court also noted that because of the numerous third-party uses, it agreed with the district court that the mark Brizzy is weak.
As to similarity, the Fifth Circuit focused on the differences in packaging, namely the shapes of the cans, design features and wording. Further, the Fifth Circuit considered the initial consonants and aural similarities. It concluded that the district court did not err in concluding this digit “only marginally in favor of granting the injunction”.
In analyzing the digit of intent, Future Proof claimed that Coors and its executives were aware of and had notice of Brizzy when they began marketing Vizzy. However, the Fifth Circuit found that mere awareness is not enough to establish intent. Instead, the inquiry must focus on whether the defendant intended to derive benefits from the reputation of the plaintiff and the Court must rely on evidence that a defendant imitated packaging material or adopted similar distribution methods. Future Proof provided no such evidence and thus there was no established bad intent.
The only instance of actual confusion cited involved a wholesaler, not a consumer. According to the Fifth Circuit, a fleeting mix-up of names is not sufficient to establish actual confusion.
Finally, the Fifth Circuit concluded that the low price of the product was not sufficient to establish a lack of care in terms of the purchasing decision. Future Proof failed to provide an affidavit or testimony to show a lack of consumer care.
After conducting the digit analysis, the Fifth Circuit concluded that a finding of likelihood of confusion does not have to be supported by a majority of the digits, and each digit must be weighed differently for each case. Although the district court had found three of the factors supported an injunction, and one other marginally so, the Fifth Circuit found no error in the district court’s reliance on the other four factors, which weighed against an injunction, especially the two digits that have special importance, namely, intent and actual confusion. The Court found that the district court did not commit error in concluding that Future Proof failed to carry its burden of showing the likelihood of confusion and affirmed the district court ruling.