US distillery sues over ‘breakfast’ trademark

30th November, 2017 by Nicola Carruthers

US spirits producer Few Spirits has reportedly taken legal action against Gray Skies Distillery in a trademark dispute over the use of the word ‘breakfast’.

Gray Skies’s Breakfast Rye whiskey is heading to stores next week

Few Spirits, the maker of Breakfast Gin, has taken the Michigan-based Gray Skies Distillery to court over the planned December launch of its new whiskey, Breakfast Rye.

The Illinois-based distiller first launched Breakfast Gin in 2011, followed by an earl grey tea variant in 2016. A Facebook post on Gray Skies’s page on Tuesday (28 November) announced the launch of the rye whiskey, said: “We are excited to introduce Breakfast Rye… a rye whiskey finished in maple syrup barrels.” The distiller said it would launch the expression next week at its tasting room, and bars and restaurants around Michigan.

The Breakfast Rye whiskey has been aged in charred, new, oak barrels, then finished for six months in maple syrup casks

As reported by MLive.com, Few’s counsel sent a notice in October telling Gray Skies it had “prior rights and registration” to Breakfast Gin, and told it to cease any use of Breakfast Rye. In the lawsuit, it alleged trademark infringement, unfair competition, and violation of Michigan’s Consumer Protection Act.

In response, Gray Skies submitted a letter of protest to Few’s pending trademark application.

The Breakfast Gin producer is now seeking an injunction to prevent Gray Skies from selling Breakfast Rye, including damages if it goes up for sales in stores or in bars.

“The use of ‘breakfast’ to describe alcoholic beverage products that have characteristics, aromas or flavours reminiscent of breakfast foods, is replete in the marketplace,” Williams wrote.

“For example, Founders Brewing Company markets and sells Founders Breakfast Stout and Founders Canadian Breakfast Stout. Dogfish Head markets and sells beer for Breakfast Stout.”

Few Spirits launched Breakfast Gin in 2011

“[Gray Skies Distillery] has deliberately and wilfully used the Breakfast Rye mark to trade upon Few’s widespread and hard-earned goodwill in its Breakfast Gin distilled spirits, as well as to confuse consumers as to the origin and sponsorship of [Gray Skies’s] distilled spirits,” Grand Rapids attorney Bruce Courtade wrote in the lawsuit.

Courtade said that Few Spirits trademarked Breakfast Gin, “well before” Gray Skies started packaging the new rye whiskey.

Courtade said: “As a result of Few’s extensive use and promotion of the Breakfast Gin mark in connection with distilled spirits, the Breakfast Gin mark has become well-known and recognised by the public as identifying and distinguishing Few and its high-quality distilled spirits.”

Grand Rapids attorney Thomas Williams said “the name of breakfast liquors isn’t necessarily to be taken literally”.

A spokesperson from the Gray Skies Distillery told The Spirits Business: “We consider the lawsuit to be baseless and vigorously dispute the claims made in it. “Breakfast” is a common term describing the characteristics of the spirit. Breakfast Rye was finished in maple syrup barrels imparting the essence of maple syrup in the product.

“There are many instances of alcohol brands using breakfast on their labels to describe their products. Buyers of craft spirits are very discriminating and clearly know the difference between whiskey and gin. The packages are dissimilar and no one could be confused when you put the two products side by side in the market. Unfortunately, we have to fight this lawsuit.”

The Spirits Business has approached Few Spirits for comment.

One Response to “US distillery sues over ‘breakfast’ trademark”

  1. Tom says:

    I think Mr Calabrase might have something to say about Prior Use on this one?

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