IP Information & News

Guns N’ Rosé — welcome to the IP jungle

Christopher Banister

By Christopher Banister

Trade Mark Attorney

For as long as there has been rock and roll, bands have sold their own branded merchandise such as posters, t-shirts and mugs. Such merchandise appeals to loyal fans as a way of showing their admiration and support for their musical idols.

Today, the range of merchandise on offer has greatly expanded to include everything from car air fresheners to alcoholic beverages. The expansion into alcohol is particularly interesting given the close and often troubled relationship between it and many of our favourite rock stars — just think Ozzy Osbourne, Iggy Pop and Keith Richards.

The ‘cool’, ‘anti-authoritarian’ connotations of rock and roll-themed booze have not been overlooked by commercially-minded artists — and this has birthed such ingeniously branded beverages as Metallica’s ‘Enter Night Pilsner’ and Slayer’s ‘Reign in Blood’ Cabernet Sauvignon.

So at first sight, ‘Guns N’ Rosé’ (a rosé ale) would appear to be just another rock and roll-themed tipple endorsed by one of the biggest bands in history. However, all is not what it seems…

Use your allusion

According to a lawsuit lodged by Guns N’ Roses at a Californian District Court, Oskar Blues Brewery — the brewery behind ‘Guns N’ Rosé’ — isn’t in any way connected with the band and has sold these branded beers without its permission.

The allusion created by the beer’s name to the world-famous rock band is undoubtedly clear and in most cases a cheeky third-party would have realised the infringing nature of its activities and apologetically made arrangements to rebrand its products. Judging from the court papers however, it seems that Oskar Blues Brewery had other ideas…

Getting in the ring

The dispute appears to date back to August 2018 when Oskar Blues Brewery filed a trade mark application at the US Patent and Trade Marks Office (USPTO) for GUNS N ROSE covering “beer” in Class 32. This application came to the attention of Guns N’ Roses’ lawyers who, in December 2018, contacted Oskar Blues Brewery to notify it of the band’s trade mark rights — an effort to put an end to its use of the confusingly similar mark.

Surprisingly, the brewery didn’t give up at this point and chose to flat out deny Guns N’ Roses’ claims of infringement. Correspondence between the parties continued for a few months until Guns N’ Roses took the first official step in defending its trade mark rights by filing an opposition to Oskar Blues Brewery’s application for GUNS N ROSE at the USPTO.

The brewery responded to this by sensibly agreeing to abandon its trade mark application and promising not to use any confusingly similar mark in the future. This would have been the end of the matter if it were not for the fact that Oskar Blues Brewery still insisted on selling its branded products through to March 2020.

Understandably, Guns N’ Roses lost patience with Oskar Blues Brewery at this point and on 9 May 2019 the band filed a lawsuit seeking, among other things, an injunction to prevent the further sale of ‘Guns N’ Rosé’-branded beers in the US. According to media sources at the time of writing, Oskar Blues Brewery is yet to comment on the lawsuit against it.

Trade mark infringement — an appetite for destruction

The temptation for any business to use a trade mark to evoke a famous brand is a strong one, as it’s a sure-fire way of encouraging consumers to buy a particular product. Consumers are likely to make a mental link between the famous brand and the trade mark and therefore expect the marked products to exhibit certain desirable characteristics and qualities.

However, where such a product doesn’t originate from the brand owner (or its licensees), the owner will have absolutely no control in terms of protecting the goodwill and reputation attached to that brand. Uncontrolled third-party use of a similar trade mark can ultimately damage a brand, particularly where consumers are mistakenly led to believe that inferior-quality products originate from the brand owner.

Pretty tied-up in legal trouble

The choice of ‘Guns N’ Rosé’ as a trade mark for beer was always going to land Oskar Blues Brewery in some form of legal trouble. In my view, the fact it boldly chose to adopt this mark and, when challenged, actively fought Guns N’ Roses over the right to use it, only highlights just how much it would have benefitted from taking legal advice from a trade mark professional beforehand. The brewery now has an expensive lawsuit to contend with — and it must be said that the odds are heavily on the side of Guns N’ Roses in this one.

The key lesson here is that you should avoid shortcuts, no matter how tempting they may be, and always seek proper legal advice before adopting a new trade mark. This will ensure that you avoid getting tied-up in legal disputes further down the road, enabling you to fully focus on achieving your commercial goals.

Have a question about brands or trade marks? Feel free to get in touch with me at cdb@udl.co.uk or read our trade mark FAQs to find out more.

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