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Barefoot, flipflop, and the wacky, wonderful world of wine trademarks

Barefoot, flipflopRegular visitors here know how the Wine Curmudgeon feels about wine companies that sue other wine companies over similar labels and similar names. Curmudgeonly, of course.

The most infamous lawsuit of recent years was the faceoff between the company that owns Cristal, the mega-pricey Champagne, and the $7 Spanish cava, Cristalino. But there have been a fair number of others, including Anheuser-Busch vs. an Argentine wine producer called Budini, and YellowTail vs. the Wine Group, who were fighting whether a kangaroo looked like a wallaby.

As much fun as these were, they pale in comparison to what could be the next big trademark and tradedress lawsuit in the wine business — if E&J Gallo and the Wine Group square off over two fabulously successful brands, Gallo’s Barefoot and Wine Group’s flipflop. More, after the jump:

Disclaimers, first. The Wine Curmudgeon has absolutely no idea if either company plans to sue the other, and I’m not a lawyer offering advice. I’m doing this as a public service to the wine consumer, and it is entirely speculation on my part — though I’m certainly willing to serve as an expert witness for whichever side offers the most money.

But if Cristal can force Cristalino to change its name and label, and the Budweiser beer people can force Budini to change its name, then it sure looks like Barefoot and flipflop have reason to retain attoneys. And that each company has a history of suing and being sued doesn’t hurt, either.

Consider these “coincidences:”

• The names are very similar. Maybe not Cristal-Cristalino similar, but ordinary-consumer-shopping-for-wine-similar. I can hear the shopper now: “I want to buy that wine with the foot on the label. You, know the beach wine.” Sounds confusing enough to me to meet the standard in the Cristalino case, where the judge ruled that it didn’t matter if sales were affected — it was enough if consumers were confused.

• The logos are very similar. Click here to see what I mean.

• The wines are more or less the same price, sold in the same places (practically next to each other on the shelf), appeal to the same demographic, and use the same marketing approach. Barefoot sponsors beach rescue; flipflop donates money for shoes. All of that is certainly more confusing than a wine with a name that is sort of like the name of a beer.

Most importantly, each brand makes piles of money — and isn’t that what lawsuits are usually about? Barefoot recorded a 23 percent sales increase last year, and is among the best-selling brands in the wine business. flipflop, meanwhile, sold an estimated 600,000 cases in its first year on the market, and an industry analysis called it one of the hottest brands in wine (slipping it into the same sentence with Barefoot, so I’m not the only one who notices these things).

Now I understand why my mom wanted me to be a lawyer.

The cartoon is from dh003i, via OpenClipArt, using a Creative Commons license

4 Responses to Barefoot, flipflop, and the wacky, wonderful world of wine trademarks

  1. This is hilarious. One can imagine the sign on the restaurant door:
    “SHIRTS AND SHOES REQUIRED: NO BAREFOOT!”
    And I hear flipflop is the house wine of the Romney campaign …..
    (sorry … that was wrong … )

  2. bburnsey says:

    Not to mention, they probably taste exactly the same.

  3. jessica@jessicastonelevy.com' Jessica says:

    As a trademark lawyer, I’m not particularly troubled by Barefoot and flipflop. The marks differ in sight, sound, and meaning – that’s not to say their meaning isn’t similar or related – but you can’t base a trademark infringement case solely on the premise that the public is too stupid to remember whether it was a shod or unshod foot on the label of the wine they bought! Of course, that doesn’t mean a lawsuit isn’t coming …
    (And yes, the Budini one is just ridiculous, but Cristalino one has some merit, IMHO).

  4. Jeff Siegel says:

    Thank you, Jessica, for your insight. That’s what is so confusing to me about all of this — that something that doesn’t seem like a problem (Cristalino and Cristal) is, while something that seems like it might be a problem isn’t. No wonder why drinkers are aways so confused.

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