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Lawsuit of the Week: Ballz-y marketing leads to cocktail fight over trademark

Texas distillery claims B.C.’s Endless Summer copied its product branding and packaging
The B.C. Supreme Court in Vancouver

Some Ballz-y marketing is at the centre of a cocktail fight in Vancouver’s courts.

BuzzBallz LLC is a Texas-based distillery, founded by Merrilee Kick and operated by her family, that describes itself in a lawsuit filed last week as a “leading innovator of mixed cocktail beverages.”

At the receiving end of the lawsuit is Kelowna-based Endless Summer Distillery Ltd. and KIS Consulting Ltd., a Coquitlam-based firm that provides sales and marketing services for Endless Summer.

According to the lawsuit, Kick developed the BuzzBallz brand as part of her master’s degree thesis project in 2009. While it’s made in Texas, it now exports to “essentially every state” and over 20 countries around the world – but not B.C.

In fact, the lawsuit claims Kick was in the process of finalizing the company’s incorporation in Canada and intends to launch in B.C. by May of this year, along with a national brand launch.

The lawsuit claims Kick had presented her product to “multiple liquor boards across the country,” though it doesn’t specify in which provinces.

Kick claimed in her lawsuit that the BuzzBallz brand has “developed significant goodwill and reputation” in Canada through “extensive investment, marketing, sales and/or use around the world, and particularly across the border in the U.S.”

The BuzzBallz branding trademark is defined, according to the lawsuit, by a single word trademark (BuzzBallz) with “less prominent descriptive text immediately below” and the spherical drink container in which it’s packaged.

The BuzzBallz lawsuit argues that trademark has been infringed by Endless Summer as the distillery markets its PartyBallz cocktail product through KIS. PartyBallz is being sold in private liquor stores in B.C.

The Texas distillery is claiming the defendants’ packaging of the PartyBallz product is part of an “intentional campaign to blatantly copy” BuzzBallz’ trademark packaging, including the single word name (PartyBallz), the less-prominent descriptive text immediately below and the ball-shaped drink container.

“The defendants intentionally adopted and uses the PartyBallz mark in connection with mixed cocktail beverages so as to create consumer confusion and tradeoff of the reputation and goodwill garnered in the BuzzBallz mark, or should have known that this would be the result,” reads the lawsuit.

“Due to the striking resemblance between the BuzzBallz and the PartyBallz branded products, and the misappropriation by the defendants of the trade dress indicia in terms of appearance and idea suggested, there is a very strong likelihood of confusion.”

The effect is Endless Summer “trading on the renown” of BuzzBallz’ trademark branding and packaging for similar products: mixed cocktails, according to the lawsuit.

“In doing so, the defendants are trying to obtain a marketing ‘free ride’ to create instant demand for its mixed cocktail products, while avoiding marketing costs that they would otherwise need to expend if they were to attempt to create such public awareness and reputation in a legitimate way,” reads the lawsuit.

And on top of benefitting itself, the Texas distillery claims the move will hurt BuzzBallz’ own sales, especially because the plaintiffs’ product has yet to launch in Canada.

BuzzBallz is seeking a declaration that Endless Summer has infringed on its trademark and an injunction against the Kelowna distillery using that trademark, as well as an order for it to give up or destroy all of its products and marketing, and delete any digital posts about the PartyBallz product.

Endless Summer has not filed a response as of press time.