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NATIONAL DISTILLERS PRODUCTS v. REFRESHMENT BRANDS
April 15, 2002
NATIONAL DISTILLERS PRODUCTS CO., LLC, PLAINTIFF,
REFRESHMENT BRANDS, INC., WINE MERCHANTS/BUFF, WINE MERCHANTS OF A SYRACUSE, LTD., AND WINE MERCHANTS OF SCHENECTADY, LTD. DEFENDANT.
The opinion of the court was delivered by: Buchwald, District Judge.
National Distillers Products Co., LLC ("National") brought this
trademark action against Refreshment Brands, Inc. ("RBI") and several
other defendants. The parties consented to a bench trial which was held
on February 5-8, 2002.*fn1 The following Opinion constitutes our
findings of fact and conclusions of law. As discussed below, we find for
the defendants on all counts.
Nevertheless Teton Glacier has not been a successful product. One of
National's partners, John Salisbury, testified that he hoped to sell
40,000-100,000 cases per year in order to make the Teton Glacier brand
attractive enough to be purchased by a larger alcoholic beverage
company. In its best year, however, Teton Glacier sold fewer than 8,000
cases, and has sold fewer than 30,000 cases in toto since its
introduction. By way of comparison, Absolut vodka sells 4,000,000 cases
per year, and Belvedere vodka sells 200,000 cases per year. Even Relska,
the thirtieth-ranked domestic vodka, sold approximately 162,000 cases in
2000, and Three Olives vodka, a relatively obscure British vodka first
introduced in 2000, sold 25,000 cases that year.
RBI, on the other hand, was founded by two partners in 1999 with the
intent to market and sell a "vodka cooler" that they named "Glacier
Bay."*fn4 A "cooler" is a broad term that encompasses many types of
alcoholic beverages that combine small amounts of alcohol, such as wine,
malt liquor, or spirits, with some type of "mixer," such as fruit juice
or carbonated water. The result is a sweet tasting beverage with the
approximate alcohol content of a beer. Well-known cooler brands include
Bartles & Jaymes and Smirnoff Ice. Coolers are most popular with women
and ethnic minorities in urban ares. RBI has had significant success with
their Glacier Bay product, selling 550,000 cases in 2001.
On May 6, 1997, the United States Patent and Trademark Office granted
National a registration for their trademark TETON GLACIER: AMERICAN
HANDCRAFTED VODKA and design. See Pl.'s Ex. 1. "Teton" is set out in
script above a black box in which "Glacier" is written in white
interlined Roman font lettering. Above these words are a sketch of two
mountains with a "sun" rising between them, and the words "Hand Crafted
American Vodka" in an arc above the mountains. National has made efforts
to protect its trademark. They have, for example, written numerous "cease
and desist" letters to entities who had plans to use the words "glacier"
and "vodka" together for products other than Teton Glacier.*fn5 Many,
but not all,*fn6 letter
recipients did, in fact, abandon their plans upon learning of National's
In 1999, RBI placed a "teaser" advertisement in a trade magazine
announcing its soon to be released Glacier Bay product. Upon becoming
aware of this advertisement, National telephoned RBI and then sent a
cease and desist letter on September 30, 1999. RBI consulted their
attorney, Gregory Meath, for advice. Mr. Meath advised RBI that their use
of the GLACIER BAY trademark in connection with their cooler product
would not infringe National's rights in TETON GLACIER. Accordingly, RBI
went ahead and launched their product in October of 1999. More than a
year later, on November 2, 2000, National filed a complaint in this Court
Although National's First Amended Complaint included twelve Counts,
three of them were withdrawn either before or during trial.*fn7 The
remaining Counts allege three distinct types of claims.
First, National claims that RBI has infringed their registered
trademark, TETON GLACIER, as well as their "family" of unregistered
trademarks, namely, GLACIER and GLACIERVODKA.COM, by marketing and
selling their products under the registered trademarks GLACIER BAY VODKA
REFRESHMENT and GLACIER BAY NIGHTS. National also claims that the trade
dress used by RBI in connection with Glacier Bay infringes the
unregistered trade dress used for Teton Glacier. These claims are brought
under sections 2(d), 32(1), and 43(a)(1)(A) of the Lanham Act, as well as
the common law.
A. Trademark Infringement
To prove its trademark infringement claims (Counts 1-3 and 5-7),
National had to prove that it was probable that "an appreciable number of
ordinarily prudent purchasers are likely to be misled, or indeed simply
confused, as to the source of the goods in question." W.W.W. Pharm. Co.,
Inc. v. Gilette Co., 984 F.2d 567, 571 (2d Cir. 1993). Specifically,
National had to show a likelihood that consumers would mistakenly believe
that the Glacier Bay vodka cooler product emanated from the producers of
Teton Glacier. In analyzing this question, we ...