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Competition or Commentary: Vitaminwater’s Trademark Potentially Strengthened by Phony Infringer

Published onMar 18, 2011
Competition or Commentary: Vitaminwater’s Trademark Potentially Strengthened by Phony Infringer

Water isn’t just water anymore.  Infused with everything from vitamins to protein, suped-up water is being marketed as a virtual dietary supplement.  But in 2007, Till Krautkramer and Brian Kane decided that water should not only supplement a diet, it should be the diet – enter Meat Water.   Meat Water boasts to be “dinner in a bottle” with meat flavored water, best served warm.  While their first flavor was a modest Weiner Schnitzel, the brand now carries a flavor for every occasion: from Chicken Salad to Texas BBQ to Venison Confit.  You can’t make this stuff up.  Or maybe you can.  And in the case of Meat Water’s so-called inventors, it might be better if it is all a hoax.  Meat Water is undoubtedly a riff on Vitaminwater’s trademarked bottle, label, and marketing scheme.  But while the copying is incredibly brazen, Vitaminwater hasn’t even blinked at its potential infringing competitor.  I can think of only three reasons why the owner of a famous mark would neglect to seek an injunction against a possible infringer:  the owner isn’t aware of the infringer, the infringing product isn’t a real product, or, rather than diluting/harming the mark, the “infringer” is somehow benefiting the famous mark. 

First, it is highly unlikely that Vitaminwater is unaware of Meat Water.  Even if all of Vitaminwater’s lawyers have been completely preoccupied with defending its misleading  “healthy” name, someone at the company must have come across the product in the three years it has been on the internet.  Meat Water has posted on its website a mash-up of four instances in which Jay Leno has mentioned the product by name on his show.  And even if Vitaminwater was unaware of the Leno comments or the blogosphere buzz surrounding meat-flavored water, its ears should have perked at Krautkramer’s seven-minute interview on a popular Los Angeles radio program, Kevin and Bean KROQ-FM, on February 9th.  Considering the potential for harm to the mark increases the longer the infringer is on the market, it is not in Vitaminwater’s best interest to sit on its laurels and wait to sue once it is aware of the infringement.  Since it would be extraordinarily unusual for Vitaminwater to be unaware of this riff on its product, its failure to file suit must be motivated by something else.

It is more likely that Meat Water is simply not a real product, and therefore, not competition for Vitaminwater.  While the intricacy of the website and the consistent marketing of the product would suggest to consumers that they should be watching for meat-flavored water in their local grocery stores, more careful investigation of the creators of Meat Water reveals that the product is most likely an elaborate parody.  Krautkramer is a Brooklyn photographer and artist, while Kane is a graphic designer.  There are also glaring indications on the website that the product isn’t actually real, such as Krautkramer’s “Standard Answers to Common Questions,” which not-so-subtly notes: “Anyone can do anything they want with a water product.  You can sell any liquid as long as it doesn’t kill someone.”  In order to buy the product, a consumer would have to email Meat Water and then host an event; the only products for sale on the website are t-shirts, hats, and mugs.

Even if Meat Water is a parody of Vitaminwater, however, parody is not by itself a defense to infringement or the creation of likely confusion between the products.  If a product is a parody, it is less likely to create confusion, but it is only a factor for courts to consider.  Two recent examples of parody illustrate how fact-specific the inquiry of likelihood of confusion can be.  In 2007, Louis Vuitton sued a company that was selling a dog chew toy called “Chewy Vuiton.”  The Fourth Circuit held that while the chew toy was a successful parody of the Louis Vuitton mark, it was not likely to create confusion with the popular handbags because it was not likely that the chew toys would be associated with the Parisian fashion house.  Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 268 (4th Cir. 2007).  In contrast, a 2008 suit filed by Anheuser-Busch against a company selling dog chew toys that looked like Budweiser beer succeeded in a Missouri district court.  The court reasoned these chew toys were distinguishable from the “Chewy Vuiton” chew toys because Anheuser-Busch actually sold similar pet-related items.  Anheuser-Busch, Inc. v. VIP Products, LLC, 666 F. Supp. 2d 974, 985 (E.D. Mo. 2008).  However, even if the owner of a mark can show a likelihood of confusion, that likelihood does not necessarily dilute the mark such that it is blurred with the infringer or tarnished in the consumer’s mind.  Id. at 987-88.  Thus, even though Meat Water might not even be a competitor, Vitaminwater would not be precluded from asserting a claim of infringement against the parody.  The likelihood of confusion is high given that the label and bottle come as close to being identical without actually using the mark “Vitaminwater” as possible, and the “product” is enhanced water, not some other unrelated product, like a chew toy in the shape of a Vitaminwater bottle.

The question of “blurring” or “tarnishing” the distinctiveness of the mark is related to the final reason Vitaminwater may be choosing to leave Meat Water alone: product displacement.  This concept traditionally refers to the practice of changing a mark that is not licensed for placement in a movie or television program.  One such example of this is Mercedes refusing to license its logos for use in Slumdog Millionaire for fear that seeing its luxury vehicle in a slum would tarnish the company’s image.  Instead of using another car, the movie just edited the logos out.  One news program in Australia, Hungry Beast, has suggested that companies may be using this process of removing or changing marks as a means of selling their product without actually showing the product.  Using the example of Meat Water, Hungry Beast reasons that Vitaminwater might actually benefit from the confusion because the product looks so similar.  The theory is that the parody forces consumers to think more critically about the product, and in so doing makes the consumer more likely to buy the product.  The fake product is so similar, you think about the real product more than you would if the real product was being advertised!  There is no indication that Vitaminwater is affiliated with Meat Water.  But it seems clear that any image of Meat Water is going to automatically invoke Vitaminwater in the consumer’s mind.  Even if Krautkramer is attempting to poke fun at the water industry, he could be providing some very valuable free marketing for the very company he seeks to comment on.

*Tiffany Johnson is a second-year law student at Wake Forest University School of Law, and works as a Legal Writing and Research teaching assistant.  She holds a Bachelor of the Arts in Politics from Princeton University.  Upon graduation in May 2012, Ms. Johnson intends to litigate in the private sector.

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