An unfortunate reality for breweries these days (albeit great for litigators), is that copyright and intellectual property disputes in the beer world are quite common. However, it is not often that a sovereign Indian nation finds itself embroiled in a trademark infringement battle against a beverage distributor and America’s biggest brewery for using its tribal symbols and official tribal slogan.

Imagine a beer advertising campaign that incorporated any given state’s seal and official slogan into its ads for its beer and displayed them in stores where those state’s residents shop. Those residents may be inclined to believe that their state government acquiesced to the beers ads using this type of specific imagery. Moreover, those shoppers might be more persuaded to buy that particular beer, as opposed to the beer sitting right next to it on the shelf that lacks the states “seal of approval,” so to speak. Well, a situation similar to this occurred earlier this month in North Carolina.

Earlier this month, a local North Carolina distribution company created a new promotional Budweiser campaign targeting tribal members of the Lumbee Tribe of North Carolina. These ads caused the Tribe to file a federal lawsuit against the company, as well as the makers of Budweiser and Bud Light – Anheuser-Busch. The ads, which displayed the Tribe’s official tribal logo and well-known slogan, hung above beer coolers at two separate gas stations in the towns of Lumberton and Raeford, North Carolina. According to the Tribe’s complaint, the Lumbee logo depicts the Circle of Life, with four distinct colors pertaining to four separate qualities one should possess in living a well-balanced life. This black, red, yellow, and white logo is prominently displayed on the Tribe’s website, various tribal government buildings, and tribal members identification cards.

Moreover, in addition to the Lumbee tribal seal, the trademarked tribal slogan “HERITAGE, PRIDE & STRENGTH” was also prominently displayed in the beer ads. In its complaint, the Tribe held that the tribal logo “has become strong and distinctive when used in connection with the Tribe’s services.” Thus, just as many people in the beer world recognize the need for a brewery’s name and/or logos to be protected from unauthorized use, it should also make sense that an Indian tribe would want to protect their own trademarks from being used without permission.

The Lumbee Tribe, which boasts approximately 55,000 tribal members and primarily resides in Robeson County, is by far the state’s largest Indian nation. The Tribe, who is the ninth largest Indian tribe in the United States, recently filed a complaint in a North Carolina federal court against Anheuser-Busch and southern beverage distribution company, R.A. Jeffreys Distribution Company, for alleged trademark infringements, as well as unfair competition and trade practices. The Tribe alleges that the two companies unlawfully used their tribal seal and official slogan in Budweiser and Bud Light ads at two different service stations that sell A-B beer.

 

Last week, in the United States District Court for the Eastern District of North Carolina, the Tribe initiated this lawsuit against the makers of Budweiser and Bud Light, as well as R.A. Jeffreys. According to its website, R. A. Jeffreys distributes Anheuser-Busch InBev products, as well as Corona Brands and SweetWater beers across thirty-six of the 100 counties of North Carolina. The Tribe seeks both injunctive relief and money damages against these two defendants under § 43(a) of the Federal Trademark Act of 1946, also known as the Lanham Act. Additionally, the complaint also alleges multiple North Carolina state law violations for the ads that use the Tribe’s trademarks.

The Tribe alleges that utilizing its tribal marks, which are federally-held copyrights, create a false impression to these stores’ consumers, which are likely Lumbee tribal members, that the Tribe is in some way endorsing Budweiser and Budlight. The Tribe also states that the ads are culturally insensitive, “because alcohol abuse is often associated with Native American culture.” As noted from the photos of the ads, they also include a depiction of a Lumbee tribal member in traditional ceremonial tribal regalia with a white painted face. Given the totality of circumstances, according to the Tribe, A-B and R.A. Jeffrey’s actions “offends the ethos of the [beer] marketplace.” Ultimately, the Tribe filed the lawsuit in order to resolve the “confusion and outrage” stemming from the Budweiser and Bud Light ads.

However, it is unlikely that the Missouri-based macrobrewery A-B could have foreseen this lawsuit, as R.A. Jeffreys, the local North Carolina beverage distributor, admitted that this marketing tactic occurred without A-B’s knowledge. In a released statement, A-B held that, “Our wholesalers often implement local marketing efforts on behalf of our brands. The wholesaler responsible for these signs removed them shortly after a complaint was brought to its attention, and has since expressed its regrets. Anheuser-Busch respects the Lumbee Tribe and likewise regrets that this occurred.”

R.A. Jeffreys, its own separate statement, maintained that the company created the ads “to honor the rich heritage of the Lumbee Tribe.” In an effort to remedy Lumbee tribal members’ outcries regarding the ads, R.A. Jeffreys held that within days of the Tribe informing them that they objected to the Budweiser ads, the distributor removed all of the materials from the two locations.

Further, in this statement, the distributor said that, “R.A. Jeffreys regrets any offense that may have been taken to the use of the materials in which the Lumbee Tribe claims an interest, and R.A. Jeffreys will not make any further use of such materials unless specifically permitted to do so by the Lumbee Tribe. R.A. Jeffreys values and respects the heritage of the communities in which its customers live and work.”

Although both companies targeted in the suit have since apologized for the ads, both A-B and R.A. Jeffreys will need to respond to the lawsuit. As of the time this story is published, neither A-B nor R.A. Jeffreys has yet to file a response to the Tribe’s complaint with the North Carolina federal court. It will be interesting to see how the matter will be resolved in this legal setting, especially given the fact that R.A. Jeffreys stated that A-B lacked any involvement in the ads. It seems likely that A-B will be dropped from the suit, which could proceed as the distributor as the sole defendant. Alternatively, R.A. Jeffreys could offer the Tribe a settlement out of court in exchange for dropping the lawsuit.

Notably, part of the damages the Tribe seeks against A-B and R.A. Jeffreys are any profits that may have stemmed from these ads using its tribal trademarks. While it may be hard to quantify this exact number, if a consumer bought beer based on these A-B ads, a judge may find that the Tribe may be entitled to the proceeds.

 

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