Joose Wants Four Loko’s ‘Bullying’ Trade Dress Suit Tossed
Source: Law360
By Bill Donahue
May 25, 2016
The company behind the fruity alcohol drink Joose is pushing to toss out a lawsuit that claimed it was closely mimicking the trade dress of rival Four Loko, saying the suit was aimed at “bullying” the company “into submission.”
Phusion Projects LLC, the company behind Four Loko, filed the lawsuit last month, claiming that United Brands Co. had recently rolled out a new product called “Joose J Series” that blatantly copied Four Loko’s distinctive camo packaging.
But in a motion to dismiss filed Wednesday, United said the product had only ever been discussed in internal memos and had never hit shelves.
“Plaintiff’s entire case is based on a mockup/prototype image that it obtained from an unknown source,” United said. “Plaintiff saw that image, immediately sent a cease and desist letter to UBC, and two weeks later filed suit. Plaintiff knew (or certainly should have known) there was no UBC product on the market that could possibly cause any confusion with their purported trade dress.”
“Despite this, plaintiff filed the complaint in hopes of bullying UBC into submission before any product hit the market,” the Monday motion said.
Four Loko and Joose have long been each other’s biggest competitor. Known to college students as “blackout in a can,” the 24-ounce fruit drinks once contained caffeine, taurine, and guarana, but the stimulating ingredients were removed in 2010 after several consumers died and the Food and Drug Administration declared such alcohol-laced energy drinks unsafe.
Four Loko’s cans have a distinct look, featuring bright multi-toned coloring and a camouflage pattern. Last year, the company released a higher-alcohol “Four Loko Gold” product, sticking to the look but using a shiny new gold color scheme.
In its complaint last month, Phusion said the “Joose J Series” was created to directly compete with Four Loko Gold, including the same increased alcohol level.
What rankled Phusion was not the competition, but that United’s competing product also came in gold and black, and also featured camouflage.
“The overwhelming similarity of the Joose J Series packaging to that of Four Loko’s packaging suggests that United Brands deliberately designed the Joose J Series packaging to be as similar as possible to the Four Loko product for the purpose of trading on the goodwill that Phusion has cultivated for its Four Loko brand,” the complaint said.
Phusion is represented by Jessica Johnson Fishfeld and Paul E. Veith of Sidley Austin LLP.
United Brands is represented by Susan N. Acquista, Darius Gambino, Michael A. Geller and Paul R. Steadman of DLA Piper US LLP.
The case is Phusion Projects, LLC v. United Brands Co., case number 1:16-cv-04131, at the U.S. District Court for the Northern District of Illinois.