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Millercoors, LLC v. Anheuser-Busch Companies, Llc

United States District Court, W.D. Wisconsin

May 24, 2019

MILLERCOORS, LLC, Plaintiff,
v.
ANHEUSER-BUSCH COMPANIES, LLC, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         During Super Bowl LIII, defendant Anheuser-Busch Companies, LLC, launched an advertising campaign highlighting plaintiff MillerCoors, LLC's use of corn syrup in brewing Miller Lite and Coors Light, as compared to Anheuser-Busch's use of rice in its flagship light beer, Bud Light. This lawsuit followed, with MillerCoors asserting a claim of false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B).

         Before the court is plaintiff's motion for preliminary injunction. (Dkt. #8.)[1] In keeping with the court's comments during oral argument on that motion on May 16, 2019, and for the reasons more fully explained below, the court will grant plaintiff a preliminary injunction, though more narrow in scope than that sought by plaintiff, enjoining defendant's use of the following statements: (1) Bud Light contains “100% less corn syrup”; (2) Bud Light in direct reference to “no corn syrup” without any reference to “brewed with, ” “made with” or “uses”; (3) Miller Lite and/or Coors Light and “corn syrup” without including any reference to “brewed with, ” “made with” or “uses”; and (4) describing “corn syrup” as an ingredient “in” the finished product.[2]

         UNDISPUTED FACTS[3]

         A. Relevant Light Beer Market

         Miller Brewing Company was founded in 1855, and Coors Brewing Company was founded in 1873. Plaintiff MillerCoors, LLC was formed in 2008 as a U.S. joint venture between the owners of the Miller Brewing Company and the Coors Brewing Company. Miller Lite and Coors Light were both introduced to U.S. consumers in the 1970s. Defendant Anheuser-Busch Companies, LLC is a multinational beverage company that sells numerous products, including Bud Light beer. Currently, Bud Light has the largest market share of the U.S. market for light beers, while Miller Lite and Coors Light have the second and third-highest share of the U.S. market for light beer, respectively.

         MillerCoors market research reveals that the key reasons people buy Miller Lite and Coors Light are because the beers are (1) authentic, (2) a good value, (3) of high quality, and (4) refreshing. Plaintiff represents that its annual investment in advertising and promoting these two products in the United States has exceeded hundreds of millions of dollars per year, for the past ten years.[4] In a recent comparative advertising campaign, MillerCoors highlighted the difference in calories and carbohydrates between Miller Lite and Bud Light as depicted below:

         (Image Omitted)

         (Harrison Decl., Ex. 20 (dkt. #40-22).)

         B. Beer Brewing Process and Ingredients

         The first step in brewing beer is to create a nutrient substrate, called "wort," that yeast needs for fermentation. The sugars in the wort are sourced from malt, or from a combination of malt and starchy grains like corn or rice. Plaintiff asserts that the sugar source is selected based on the style and taste characteristics, which defendant does not dispute, although pointing out that cost may also be a factor. Defendant further represents that corn syrup is less expensive than rice.

         In its brewing process for Miller Lite and Coors Light beers, plaintiff contends that it uses “corn syrup, rather than another source of sugar, to aid fermentation because it does not mask or change the barley and hops flavors and aromas distinctive to Miller Lite and Coors Light beers.” (Pl.'s PFOFs (dkt. #10) ¶ 14.) Defendant contends that plaintiff has also “publicly, attributed the taste of its beers, in part, to corn syrup, stating that ‘corn syrup gives beer a milder and lighter-bodied flavor.'” (Def.'s Resp. to Pl.'s PFOFs (dkt. #30) ¶ 14 (quoting Goeler Decl. (dkt. #31) ¶ 24)).) There is no meaningful difference between using rice or corn syrup as an ingredient in terms of health or safety of the resulting beer product.

         The yeast's natural fermentation process converts the corn syrup sugars into ethanol, flavors, aromas, carbon dioxide, heat and a next generation of yeast cells, leaving a small amount of residual sugars. Plaintiff represents -- and defendant disputes only on the basis that it lacks information and knowledge -- that “[n]o corn syrup appears in the Coors Light and Miller Lite products at the end of the fermentation.” (Pl.'s PFOFs (dkt. #10) ¶ 18 (citing White Decl. (dkt. #12) ¶ 5(d)).) Moreover, MillerCoors does not add corn syrup or any other sweetener (including high-fructose corn syrup) to the finished Coors Light or Miller Lite products.

         While defendant Anheuser-Busch uses corn syrup as an ingredient in fermentations of many of its other products, [5] Bud Light uses rice as its sugar source. Presumably, no rice or any other sweetener appears in Bud Light at the end of the fermentation process either.

         C. Super Bowl Commercials and Subsequent Advertisements

         On February 3, 2019, during the television broadcast of Super Bowl LIII, Anheuser-Busch launched a nationwide advertising campaigning featuring claims that Miller Lite and Coors Light are “made with” or “brewed with” corn syrup. A 60-second commercial, titled “Special Delivery, ” first ran during the Super Bowl and has continued to run both in a full-length version, as well as shorter 15-second and 30-second “cut down” versions. (Reis Decl., Ex. 4 (dkt. #14-4).)

         While defendant purports to dispute any description or paraphrasing of the “Special Delivery” advertisement, the commercial contains the following scenes in order:

• The Bud Light King, the Bud Light Knight and a wizard discuss how Bud Light is brewed, with four barrels behind them labeled, “Water, ” “Rice, ” “Hops, ” and “Barley.
• One of the Bud Light King's knights then enters with a large barrel labeled “Corn Syrup” and announces, “ My King, this corn syrup was just delivered.”
• The Bud Light King responds, “that's not ours. We don't brew Bud Light with corn syrup.” The knight responds, “Miller Lite uses corn syrup, ” to which the King respond, “Let us take it to them at once.”
• The party then embarks on an arduous journey to deliver the barrel of corn syrup to the Miller Lite Castle.
• Once the Bud Light party arrives at the Miller Lite Castle, the Bud Light King announces, “Oh brewers of Miller Lite, we received your corn syrup by mistake.” The Miller Lite King, with a supply of Miller Lite at his side, responds, “That's not our corn syrup. We received our shipment this morning . . . . Try the Coors Light Castle. They also use corn syrup.”
• The party then embarks on another arduous journey to deliver the barrel to the Coors Light Castle.
• Upon arrival, the Bud Light King again announces, “Oh brewers of Coors Light, is this corn syrup yours?” The Coors Light King answers, “Well, well, well. Looks like the corn syrup has come home to be brewed. To be clear, we brew Coors Light with corn syrup.”
• The commercial closes with the written statement and voice over, “Bud Light, Brewed with no Corn Syrup.”

(Reis Decl., Ex. 4 (dkt. #14-4); Harrison Decl., Ex. 32 (dkt. #40-32) (transcript).) Since the Superbowl, the “Special Delivery” commercial in its 30-second and 60-second versions has aired over 900 times on over 20 channels. (Pl.'s PFOFs (dkt. #10) ¶ 34; Def.'s Resp. to Pl.'s PFOFs (dkt. #30) ¶ 34.)

         During the Super Bowl, Anheuser-Busch also aired two 15-second commercials, “Medieval Barbers”[6] and “Trojan Horse Occupants.” (Reis Decl., Exs. 5, 6 (dkt. ##14-5, 14-6); Harrison Decl., Exs. 33, 34 (dkt. ##40-33, 40-34) (transcripts).) Collectively, these commercials, like Special Delivery, also state that Miller Lite and Coors Light are “made with corn syrup.” Since the Super Bowl, these ads have aired 257 and 566 times, respectively.

         This year's Super Bowl advertising commanded between $5.1 and $5.3 million per 30 seconds of media placement, not including production costs. The “Special Delivery” ad, in particular, “quickly became one of the night's most talked about . . . with some observers hailing it as an advertising touchdown.” (Reis Decl. (dkt. #14) ¶ 24.)

         Since the Super Bowl, Anheuser-Busch has run other, related commercials as part of its campaign, including a 15-second “Bud Light Cave Explorers” commercials. (Reis Decl., Ex. 10 (dkt. #14-10); Harrison Decl., Ex. 35 (dkt. #40-35) (transcript).) Again, defendant disputes any attempt to paraphrase the commercial, but the commercial contains the following scenes in order:

• Two medieval characters enter a cave bearing torches.
• One character reads out-loud what is written on the inside over the cave, “Coors Light is made with barley, water, hop extract and corn syrup.”
• The other character reads out-loud another writing, “Bud Light is made with barley, rice, water, hops and no corn syrup.”
• The first character responds, “Good to know.”
• The commercial closes with the same written statement as in Special Delivery, “Bud Light, Brewed with no Corn Syrup.”

(Id.)

         Anheuser-Busch also ran a 30-second commercial titled “Bud Light Mountain Folk.” (Reis Decl., Ex. 1 (dkt. #14-11); Harrison Decl., Ex. 35 (dkt. #40-36) (transcript).) While defendant objects to plaintiff's attempt to summarize the commercial, there is no dispute that it contains the following scenes:

• Medieval characters yell at each other from mountaintops.
• The first character yells, “Coors Light is made with barley, water, hop extract, and corn syrup.”
• Another character then yells, “Miller Lite is made with barley, water, hops, hop extract, and corn syrup.”
• A third character, then yells, “Bud Light is made with barley, rice, water, hops and no corn syrup.”
• After yelling good-byes, the commercial closes with the written statement as in the other commercials, “Bud Light, Brewed with no Corn Syrup.”

(Id.)

         In addition to these television commercials, Anheuser-Busch has also launched print-media and billboard campaigns, including three sequential billboards which read:

1. Bud Light 100% less corn syrup than Coors Light.
2. and . . . wait for it . . .
3. 100% less corn syrup than Miller Lite.

(Reis Decl., Ex. 20 (dkt. #14-20).)

         Anheuser-Busch has also used its Twitter account to further this campaign. Three days after the Super Bowl, Anheuser-Busch's Twitter account displayed the following image:

         (Image Omitted)

         (Reis Decl., Ex. 2 (dkt. #14-2).) A few weeks later, Anheuser-Busch Natural Light's Twitter account contained the following image, displaying a Miller Lite can next to a Karo corn syrup bottle as if in a family portrait:

         (Image Omitted)

         (Reis Decl., Ex. 18 (dkt. #14-18).)

         At the end of February, Anheuser-Busch ran two new commercials during the Oscars' broadcast. The first commercial ran 15 seconds and is titled, "Thespians." It features two female actors exchanging the respective ingredients of Miller Lite and Bud Light. (Reis Dec, Ex 12 (dkt. #14-12); Harrison Decl., Ex. 37 (dkt. #40-37) (transcript).) Recognizing the same objection by defendant, the commercial contains the following scenes:

• The first medieval actress enters the stage holding a bottle of Miller Lite and says, "Miller Lite is made with barley, water, hops, hop extract, and corn syrup."
• The second actress enters the stage holding a bottle of Bud Light and says, "Bud Light is made with barley, rice, water, hops, and no corn syrup."
• The audience applauds and otherwise reacts enthusiastically.
• The commercial closes with the same written statement as in the other commercials, "Bud Light, Brewed with no Corn Syrup."

(Id.) The second commercial contains the same two actresses, in a 24-second mock film preview. (Reis Decl., Ex. 13 (dkt. #14-13).) The advertisement contains no spoken words, but displays the following frames:

         (Image Omitted)

         On March 20, 2019, Anheuser-Busch premiered a new commercial with the Bud Light King stating:

Miller, Miller, Miller. I've been made aware of your recent advertisement. I brought you your shipment of corn syrup, and this is how you repay me?
Look if you're this set on imitating our kingdom, may I suggest also imitating us by putting an ingredients label on your packaging. People want to know what ingredients are in their beer.
But what do I know? I'm just the king of a kingdom that doesn't brew beer with corn syrup.

(Reis Decl., Ex. 25 (dkt. #14-25); Harrison Decl., Ex. 38 (dkt. #40-38).) The commercial ends with the same language and voiceover, "Bud Light, Brewed with no Corn Syrup."

         In a New York Times article, dated March 21, 2019, Anheuser-Busch's vice president of communications stated, “We stand behind the Bud Light transparency campaign and have no plans to change the advertising.” (Reis Decl., Ex. 27 (dkt. #14-27).)

         D. Anheuser-Busch's Intent in Launching Campaign

         On February 7, 2019, Beer Business Daily reported that according to Andy Goeler, Anheuser-Busch's head of marketing for Bud Light, told its distributors that:

[Anheuser-Busch] did focus-group the heck out of this [Special Delivery] ad, and found consumers generally don't differentiate between high fructose corn syrup and corn syrup, and that it is a major triggering point in choosing brands to purchase, particularly among women.

(Reis Decl., Ex. 21 (dkt. #14-21).)[7] In an interview with Food and Wine Magazine, in response to the question, “What is wrong with corn syrup?, ” Goeler responded:

People started to react to corn syrup, they started to react to no preservatives, and they started to react to no artificial flavors. There are things that consumers on their own had perceptions -- for whatever reason -- that there were ingredients they preferred not to consume if they didn't have to. So it was pretty clear to us what to highlight. If you look at our packaging, we highlight all three of those. No corn syrup. No artificial flavors. No preservatives. It was purely driven by consumer desire.

(Reis Decl., Ex. 22 (dkt. #14-22) 3.) The interviewer then noted that Anheuser-Busch had “decided to focus on corn syrup instead of no preservative or things like that, ” and asked Goeler why he thought “consumers see corn syrup as something they don't want?” (Id. at 4.) In response, Goeler explained, “I think it's probably an ingredient some prefer not to consume is the simple answer. . . . [S]ome consumers -- for their own personal reasons -- ...


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