In the fiery Alamo trademark dispute we’ve been reporting on, defendant Texian Brewing Co. (captioned in the case as Old 300 Brewing LLC) has filed its answer to Alamo Beer’s complaint. For those not yet familiar with this one, you can review detailed coverage of this case’s history here, here, and here—but, generally, this case concerns use of “Alamo” in conjunction with beer products, including use of the Alamo’s silhouette, in addition to certain imagery that Alamo Beer contends identifies its brand.
There is nothing too surprising in the answer, with Texian denying the bulk of the allegations and raising a slew of affirmative defenses to protect itself at this early stage of litigation. One maneuver, however, is worth noting, in that it could be misleading as a “Safe Harbor” for any breweries carefully reviewing this case.
Texian argues that Alamo’s claims “are barred, in whole or in part, because Defendant is, at best, an innocent violator within the meaning of 15 U.S.C. § 1117(a)(3) with regard to the matter in question.” Again, we flag this because it’s a bit misleading. Although it is true that the Lanham Act recognizes some limitations on remedies for an innocent infringer (it’s actually not in 1117, it’s in 1114 aka §32), Texian’s actions do not appear to be the kind of activity the Lanham Act insulates.
The statute limits violators “engaged solely in the business of printing the mark or violating matter for others” and creates other remedy relief for those engaged in publishing or distributing the mark, for example printing a magazine that contains ads that are found to be infringing. Taking Alamo Beer’s allegations as true, Texian isn’t engaged in these sort of innocent reprinting uses, but is engaged in source-identifying activity for its own benefit that Alamo Beer contends infringes its mark. The bottom line is, even if Texian didn’t know of Alamo or adopted all of its uses in good faith thinking they wouldn’t cause confusion, Trademark Law doesn’t “bar” Alamo’s claims against Texian. This is so because the touchstone inquiry of trademark law is whether consumers are likely to be confused, irrespective of whether the defendant thinks they are. (“Even though a guilty state of mind is relevant evidence of trademark infringement, an innocent state of mind is irrelevant on the issue of likelihood of confusion since the lack of intent to deceive does nothing to alleviate the confusion precipitated by the similarity of the trademarks,” Playboy Enter., Inc. v. Frena, 839 F.Supp. 1552, 1561 (1993).)
At any rate, we can’t blame Texian for putting everything conceivable out there at this point, which, in addition to claims of fair use and a challenge to the validity of Alamo Beer’s trademarks, also includes assertions of “unclean hands, misuse, acquiescence, genericness, abandonment and estoppel.” We’ll continue reporting on this matter.