The maker of popular boxed wine brand Franzia is on the receiving end of a pair of lawsuits from JaM Cellars Inc. alleging that Franzia's use of "Bold & Jammy" with burgundy-colored packaging for Cabernet Sauvignon, and "Rich & Buttery" with yellow packaging for Chardonnay, infringes on JaM's rights in JAM and BUTTER for wine.
JaM owns federal trademark registrations for JAM and BUTTER for "wine," and uses its JAM mark in connection with a (dare I say jammy?) Cabernet Sauvignon, and its mark BUTTER for its (dare I say buttery?) Chardonnay. JaM alleges that Franzia recently redesigned its packaging for its Cabernet and Chardonnay in ways that differ from its designs for its other wines and that are specifically intended to trade on the goodwill JaM has built up in its JAM and BUTTER trademarks. For example, most of Franzia's other boxed wines do not include tasting notes in large bold text on the sides of its boxes. However, JaM's complaint sidesteps the fact that JaM's wines are sold in glass wine bottles, while Franzia's allegedly infringing packaging is on boxed wine. Having not tasted Franzia's wines (at least not recently), I cannot attest to the descriptive accuracy of its uses of "Bold & Jammy" and "Rich & Buttery." But given that those phrases are commonly used to describe the flavor notes of red and white wines, and given that burgundy and yellow are each arguably visually descriptive of red and white wines, it's unclear how far JaM expects to get with its lawsuits.
In fact, there is also a potential risk that the court decides that JaM's own trademarks are descriptive and ineligible for protection. Perhaps in anticipation of that, Jam has bolstered its claims by alleging that its sales of its JAM wine have been in excess of $15.9 million and that it has spent "well over thirty-five million dollars ($35,000,000) in advertising and marketing its wines." Such figures could help it make a case that its marks have also acquired distinctiveness with the wine-consuming public.
Obviously, this is going to take the court some time to work out. While we await a decision, may I suggest a glass of wine?
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