The Stone Brewing v. MillerCoors Lawsuit: Who Cast the First Stone

Guest Blog Post By Scott Harper, Partner at Harper Bates & Champion LLP

Beer shouldn’t be bitter; that’s what a 1995 Keystone Light commercial wanted consumers to think when it advertised its product as “America’s Least Bitter Beer.” While the beer might not be bitter, to some, the battle between big beer and craft brewers may be, which is evident in Stone Brewing Co., LLC v. MillerCoors LLC, a case at which Keystone beer is front and center.

In February, Stone Brewing Co., the eighth largest craft brewer in the country, filed a lawsuit against MillerCoors for trademark infringement in federal court in San Diego. Stone Brewing alleges that MillerCoors’ rebranding of its Keystone beer packaging, where “KEY” is separated from “STONE,” is a “misguided campaign to steal the consumer loyalty and awesome reputation of Stone’s craft brews and Stone Brewing's iconic STONE® trademark.” In its recently filed motion for preliminary injunction, Stone Brewing goes on to add that “Keystone's adoption of Stone's name is causing actual and irreparable consumer confusion, with a scientific study finding that more than 43% of beer consumers are confused by the new label, with over 25% net confusion.”

One of the keys of this case will turn on the concept of trademark priority, meaning who was the first to use the term STONE as a trademark. The court will look to see who used the term STONE first in connection with beer, and if such commercial use was continuous and sufficient so as to create consumer understanding of who is the source of STONE beer and distinguish it from other sources. U.S. trademark law is built upon this fundamental rule of "first in time, first in right" when it comes trademark ownership. 

Stone claims it has consistently used STONE as its trademark since brewing its first STONE beer in 1996, while MillerCoors contends that "MillerCoors began using and obtained a federal trademark registration for KEYSTONE nearly a decade before Stone Brewing registered STONE" and that "MillerCoors use of STONE and STONES in advertising predates Stone Brewing's use." Stone adds that its “award-winning distinctive hoppy and “bitter” beer has been sold for over twenty years under the incontestable STONE® federal trademark” and that MillerCoors rebranding and ongoing use of the mark STONE "is wreaking havoc in the market" and that a preliminary injunction "is necessary to halt this onslaught and protect one of California's most prized craft beer brands from permanent injury."

For the brewing industry, the implications of the fight between Stone Brewing Co. and MillerCoors over the STONE trademark showcases the importance of investing in the creation of a strong brand identity, being the first to use distinctive trademarks associated with one's beverage goods and services and continuing to grow and strengthen your trademark rights by continuously promoting the trademarked goods and services to the consuming public.

In the case of Stone Brewing and MillerCoors, it will be interesting to see which "Stone" hits the mark, and who is left feeling a little bitter at the end of the day. Stay tuned as the "stones" continue to fly!

Photo Courtesy Stone Brewing Co.