2019.05.09 - GN'R Vs. Canarchy Craft Brewery lawsuit document (& related articles)

by **Blackstar** Mon Mar 18, 2024 9:03 pm

SHEPPARD MULLIN RICHTER & HAMPTON LLP
JILL M. PIETRINI (Cal. Bar No. 138335)
BENJAMIN O. AIGBOBOH (Cal. Bar No. 268531)
1901 Avenue of the Stars, Suite 1600
Los Angeles, California 90067-6055
[...]
Attorneys for Plaintiff GUNS N’ ROSES

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

GUNS N’ ROSES, a California partnership,
Plaintiff,
v.
CANARCHY CRAFT BREWERY COLLECTIVE LLC, dba OSKAR BLUES BREWERY, a Colorado Limited Liability Company
Defendant.

Case No. 2:19-cv-4052

COMPLAINT FOR:
(1) TRADEMARK INFRINGEMENT IN VIOLATION OF 15 U.S.C. § 1114;
(2) FALSE DESIGNATION OF ORIGIN IN VIOLATION OF 15 U.S.C. § 1125(a);
(3) TRADEMARK DILUTION IN VIOLATION OF 15 U.S.C. § 1125(c);
(4) COMMON LAW TRADEMARK INFRINGEMENT;
(5) UNFAIR COMPETITION IN VIOLATION OF CAL. BUS. & PROF. CODE §§ 17200, ET SEQ.;
(6) COMMON LAW UNFAIR COMPETITION; AND
(7) MISAPPROPRIATION OF RIGHT OF PUBLICITY IN VIOLATION OF CAL. CIV. CODE § 3344 AND COMMON LAW.
DEMAND FOR JURY TRIAL

Plaintiff Guns N’ Roses (“GNR”) for their Complaint against Defendant CANarchy Brewery Collective LLC, doing business as Oskar Blues Brewery (“Defendant”), and Does 1-10, alleges as follows:

JURISDICTION AND VENUE

1. This action arises under the trademark laws of the United States, 15 U.S.C. § 1051, et seq., and California statutory and common law. The Court has original subject matter jurisdiction over this action pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338. The Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over claims arising under California law because all of the claims herein arise out of a common nucleus of facts.

2. Venue is proper under 28 U.S.C. § 1391(b) because, upon information and belief, a substantial part of the events or omissions giving rise to the claims occurred in this District and Defendant is subject to personal jurisdiction in this District.

THE PARTIES

3. GNR is a musical group and partnership organized and existing under the laws of the state of California with their principle place of business in Los Angeles, California. GNR’s general partners are W. Axl Rose (“Axl Rose”), Saul Hudson, pka Slash, and Michael McKagan.

4. Upon information and belief, Defendant is a Colorado limited liability company with its principle place of business Longmont, Colorado and that is registered to do business in California.

5. The true names, identities and capacities, whether individual, associate, corporate or otherwise, of Defendants DOES 1 to 10, inclusive, and each of them (the “DOE Defendants”), are unknown to GNR at this time, who therefore sues the DOE Defendants by such fictitious names. When the true names and capacities or participation of the DOE Defendants are ascertained, GNR will amend this complaint to assert the true names, identities and capacities. GNR is informed and believes and thereon alleges that each of the DOE Defendants sued herein is responsible for the wrongful acts alleged herein, and is therefore liable to GNR in some manner for the events and happenings alleged in this Complaint. GNR is informed and believes and thereon alleges that at all times herein mentioned, the DOE Defendants were and are doing business and/or residing in this District.

FACTUAL BACKGROUND

A. GNR’s Three Decades of Worldwide Success Under the Famous GUNS N’ ROSES Trademark

6. In 1984, GNR’s co-founders Tracii Guns and Axl Rose combined their respective bands “LA Guns” and “Hollywood Rose” to form the band “Guns N’ Roses.” Since the formation, GNR has achieved national and international renown as one of the greatest, and most commercial and critically successful, bands of all time.

7. GNR’s debut studio album, Appetite for Destruction, was released in 1987. On the strength of their famous and iconic songs -- including “Welcome to the Jungle,” “Sweet Child O’ Mine,” and “Paradise City” -- Appetite for Destruction reached number one on the Billboard 200, Billboard magazine’s chart ranking the 200 most popular albums in the United States, in 1988.

8. Since its release, Appetite for Destruction has sold at least 30 million copies worldwide. This includes at least 18 million copies sold in the United States, which makes Appetite for Destruction the best-selling debut album, and one of the best-selling albums period, of all time in the United States. Among other critical accolades, Appetite for Destruction was ranked number 62 on Rolling Stone’s list of the 500 Greatest Albums of All Time and number 42 on VH1’s list of the best 100 albums in rock and roll history, and has been repeatedly hailed by music critics and fans as one of greatest rock and roll albums of all time.

9. GNR’s subsequent studio albums -- G N’ R Lies (1988), Use Your Illusion I (1991), Use Your Illusion II (1991), “The Spaghetti Incident” (1993), and Chinese Democracy (2008) -- have sold, at least, 20 million copies collectively in the United States alone since their release. As with Appetite for Destruction, each of GNR’s subsequent studio albums has been the subject of critical praise in publications such as Entertainment Weekly, Rolling Stone, Los Angeles Times, Chicago Tribune, Spin, and NME.

10. In addition to and in connection with its recorded musical output, GNR has created some of the most iconic and popular music videos of all-time. As of May 7, 2019, the official music videos for GNR songs “Welcome to the Jungle,” “Paradise City,” “Sweet Child O’ Mine,” and “November Rain” have been collectively viewed nearly 3 billion times on YouTube, alone. The excellence of GNR’s music videos has been widely acknowledged, including by seminal music television channel MTV when it awarded GNR a Video Vanguard Award to recognize their accomplishments in music and film.

11. GNR, and their recorded music and music videos, have been nominated for and won numerous awards including American Music Awards (eight nominations and four wins), Billboard Music Awards (six nominations and one win), Grammy Awards (four nominations), and MTV Video Music Awards (nine nominations and four wins).

12. GNR’s live performances, in the United States and abroad, have also been massively successful. In addition to performing and touring with some of the greatest acts in popular music’s history -- including Metallica and Aerosmith -- GNR has headlined national and international tours that have been attended by millions of people and earned hundreds of millions of dollars. By way of example, GNR’s Not in This Lifetime... Tour -- which ran from April 2016 to December 2018, included more than 150 shows in the United States and worldwide, and featured a headlining performance at the world-famous Coachella Festival -- grossed more than $563 million, making it one of the highest-grossing tours of all time. Among other accolades, GNR’s Not in This Lifetime... Tour won “Top Tour/Top Draw” at the 2017 Billboard Touring Awards, nominated for “Top Rock Tour” at the 2017 Billboard Music Awards, and was awarded the inaugural Ticketmaster Touring Milestone Award in 2019.

13. Due to their more than three decades of musical excellence and success, GNR was inducted into the Rock & Roll Hall of Fame in 2012 -- their first year of eligibility for induction -- taking their place alongside music legends such as James Brown, Ray Charles, Elvis Presley, Aretha Franklin, The Beatles, Bob Dylan, The Rolling Stones, Stevie Wonder, Bob Marley, Johnny Cash, The Jimi Hendrix Experience, Led Zeppelin, Queen, The Ramones, and Prince.

14. Given their fame and renown, GNR and their music have been the subject of considerable press and public comment over the course of their three-plus decade existence, including countless articles in world-famous magazines like Rolling Stone, and hundreds of books, television shows, and films. GNR and their music have also been prominently featured in television shows, films (including the blockbuster Terminator 2: Judgment Day), and video games such as Guitar Hero.

15. GNR, themselves or through their licensees, has also successfully offered to sell and sold a variety of “Guns N’ Roses” -- branded products to consumers. This includes, but is not limited, clothing and related accessories such as t-shirts, hats, patches, stickers, buttons, and bandannas -- an item uniquely associated with GNR and their co-founder and lead singer Axl Rose, who has famously worn bandannas for decades. This also includes items used for and related to the imbibing of alcohol including wine glasses, pint glasses, beer “koozies” (sleeves used to keep beer cans cold), and shot glasses.

16. GNR is the owner of the following incontestable federal trademark registrations of the mark GUNS N’ ROSES, true and correct copies of which are attached hereto as Exhibit A:

Reg. No.	Class and Goods/Services	Reg. Date
1,762,599	Class 9: Prerecorded video and audio tapes, prerecorded phonograph records and prerecorded compact discs all featuring music.	April 6, 1997
1,766,309	Class 41: Entertainment services; namely, performances by a musical group.	April 20, 1993
2,035,815	Class 25: Clothing, namely, T-shirts, shirts, hats, caps, bandannas, sweatpants, and thermal shirts	February 4, 1997

17. By virtue of their use of the GUNS N’ ROSES mark over the course of three decades, GNR also has common law rights in the GUNS N’ ROSES mark for a broad range of goods and services including, but not limited to, the goods and services identified herein.

18. GNR and/or persons or entities acting on their behalf and direction and/or with their consent have undertaken significant efforts to market GNR, their marks, their music, their live performances, and their merchandise through various channels including, but not limited to, traditional media and social media. GNR’s Not in This Lifetime... Tour was marketed throughout the United States and abroad in various channels including television, radio, print, and online. GNR’s social media following evidences the success of these (and other) efforts undertaken over the course of thirty years. As of May 7, 2019, GNR’s official Facebook page (available at the domain ) has more 27 million Followers and 29 million “Likes,” official Instagram account (available at the domain ) has more than 3.9 million Followers, and official Twitter account (available at the domain ) has more than 6.2 million Followers.

B. Defendant and its Infringing Activities

19. On information and belief, Defendant is a brewery that sells beer and merchandise throughout the United States and operates bars and/or restaurants in several states in the United States.

20. On information and belief, Defendant has offered to sell and sold craft beer under the mark GUNS ‘N’ ROSE in canned and keg form since at least as early as 2018 without GNR’s approval, license, or consent. A true and correct copy of the label for the canned version of Defendant’s GUNS ‘N’ ROSE beer is reproduced below:

21. Defendant has also offered to sell and sold various merchandise under and bearing the mark GUNS ‘N’ ROSÉ, including hats, t-shirts, pint glasses, stickers, buttons, and bandannas, without GNR’s approval, license, or consent. True and correct copies of product listings for Defendant’s GUNS ‘N’ ROSÉ hats, t-shirts, pint glasses, stickers, buttons, and bandannas, which were printed from Defendant’s webstore available at the domain on May 6, 2019, are attached hereto as Exhibit B.

22. On August 2, 2018, Defendant filed an application to register the mark GUNS N ROSE (Application No. 88/062,803) for beer with the United States Patent and Trademark Office (the “PTO”). A true and correct copy of Defendant’s trademark application is attached hereto as Exhibit C.

23. In December 2018, GNR, through their business manager, contacted Defendant informally and spoke with Defendant’s Chief Executive Officer and set forth GNR’s claims and attempted to resolve this dispute short of escalating the matter to counsel. Defendant rejected GNR’s claims.

24. Following the call with Defendant’s Chief Executive Officer, on December 21, 2018, GNR sent Defendant a letter requesting that, among other things, it cease its authorized use GUNS N ROSE or any other marks confusingly similar to the GUNS N’ ROSES mark, and abandon its application to register the GUNS N ROSE mark. A true and correct copy of GNR’s December 21, 2018 letter is attached hereto as Exhibit D.

25. Defendant responded to GNR’s December 21, 2018 letter on January 22, 2019. Instead of agreeing to GNR’s requests, Defendant, in terse and conclusory terms, denied GNR’s claims and concluded that “its response.. .resolves this matter.” A true and correct copy of Defendant’s January 22, 2019 letter is attached hereto at Exhibit E.

26. Tellingly, Defendant did not contend in its January 22, 2019 letter that it was not aware of GNR or their GUNS N’ ROSES trademark at the time it selected and adopted the GUNS ‘N’ ROSÉ mark (which appears on Defendant’s goods) or the GUNS N ROSE mark (which is the subject of Defendant’s August 2, 2018 application field with the PTO).

27. Defendant’s professed ignorance of “any instances of a musical artist or group using its name as the name of a beer” was belied by GNR’s December 21, 2018 assertion that “many musical artists and entertainers have expanded or intend to expand in alcoholic beverages” including GNR contemporaries Metallica, AC/DC, Deftones, Anthrax, Iron Maiden, Motorhead, and Mastodon. This practice is common with “hard rock,” “heavy metal,” and “rock and roll” bands -- genres with which GNR is commonly associated and into which they are often classified. At least one purchaser of Defendant’s GUNS ‘N’ ROSÉ beer made this connection in an Instagram post about “having [a] beerchella” by drinking Metallica-branded, Sex Pistols-branded, Grateful Dead-branded, and Defendant’s GUNS ‘N’ ROSÉ beer:

28. GNR responded to Defendant’s January 22, 2019 letter on March 13, 2019. A true and correct copy of GNR’s March 13, 2019 letter is attached hereto as Exhibit F. Not only did GNR reiterate their December 21, 2018 requests, it noted that Defendant’s GUNS ‘N’ ROSÉ merchandise, of which GNR had only recently become aware and in which GNR indisputably holds prior registered rights, exacerbated the likelihood of confusion and association. This merchandise includes Defendant’s GUNS ‘N’ ROSÉ buttons, which are commonly offered by musical groups, bands, and artists. It also includes Defendant’s GUNS ‘N’ ROSÉ bandannas -- the only bandannas offered for sale by Defendant despite the fact it offers merchandise for several of its other beer “brands.” Given that bandannas are uniquely associated with GNR and their lead singer and general partner Axl Rose, and that the only bandannas offered by Defendant are GUNS ‘N’ ROSÉ bandannas, it is clear that Defendant intended to further associate itself and its products with GNR in order to freeride off GNR’s goodwill, prestige, and reputation.

29. On December 31, 2018, Defendant changed its name from Oskar Blues Brewery, LLC to CANarchy Craft Brewery Collective LLC. On March 25, 2019 and after the cease and desist correspondence with GNR, Defendant recorded the change of name against Defendant’s application to register GUNS N ROSE with the PTO.

30. On March 26, 2019, GNR instituted an opposition proceeding before the PTO’s Trademark Trial and Appeal Board (the “TTAB”), opposing Defendant’s application to register the mark GUNS N ROSE based on, among other things, its prior rights in the GUNS N’ ROSES mark. A true and correct copy of GNR’s notice of opposition, without exhibits, in the TTAB proceeding is attached hereto as Exhibit G.

31. That same day, Defendant responded to GNR’s March 13, 2019 letter. A true and correct copy of Defendant’s March 26, 2019 letter is attached hereto as Exhibit H. Despite agreeing to expressly abandon to its application to register the mark GUNS N ROSE and not use any marks incorporating the terms GUNS N ROSÉ or GUNS N ROSES in the future, Defendant stated that it would continue to sell and market GUNS ‘N’ ROSÉ beer, clothing, or other products through March 2020.

32. Five weeks later, on May 1, 2019, Defendant filed an express abandonment of its application in the TTAB opposition proceeding, expressly abandoning its application to register the mark GUNS N ROSE with prejudice.

33. On May 7, 2019, the TTAB sustained GNR’s opposition to Defendant’s application to register the GUNS N ROSE mark, entered judgment in GNR’s favor, and refused registration of the GUNS N ROSE mark. A true and correct copy of the TTAB’s May 7, 2019 order is attached hereto as Exhibit I.

34. Notwithstanding Defendant’s express abandonment of its application to register the mark GUNS N ROSE and the TTAB’s order, Defendant has refused to immediately and completely cease sales and marketing of GUNS ‘N’ ROSÉ beer, clothing, or other products until March 2020. As of the filing of this Complaint, Defendant’s GUNS N ROSE beer continues to be sold at retailers such as BevMo, and Defendant’s infringing GUNS N ROSE merchandise continues to be sold on Defendant’s website. Defendant should not be entitled to continue to sell infringing products and intentionally trade on the GNR’s goodwill, prestige, and fame without GNR’s approval, license, or consent.

FIRST CAUSE OF ACTION
(Trademark Infringement in Violation of 15 U.S.C. §§ 1114)

35. GNR repeats and realleges each and every allegation of Paragraphs 1 through 34, above, as though fully set forth herein.

36. GNR owns valid and subsisting federal and common law rights in the mark GUNS N’ ROSES, including three incontestable federal registrations of the mark for a variety of goods and services.

37. Defendant has used in commerce, without GNR’s permission or authorization, the GUNS N’ ROSES mark or marks confusingly similar thereto specifically, the marks GUNS N ROSE and/or GUNS ‘N’ ROSÉ -- in a manner that is likely to cause confusion with respect to the source and origin of Defendant’s goods and is likely to cause confusion or mistake and to deceive purchasers as to GNR’s affiliation, connection, or association with, or approval or sponsorship of, Defendant, its business, and/or its goods.

38. Defendant’s acts constitute infringement of GNR’s GUNS N’ ROSES trademark in violation of 15 U.S.C. § 1114.

39. As a direct and proximate result of Defendant’s wrongful acts, GNR has suffered and continues to suffer and/or is likely to suffer damage to their trademarks, business reputation, and goodwill. Defendant will continue to use, unless restrained, the GUNS N’ ROSES mark or marks confusingly similar thereto, and will cause irreparable damage to GNR. GNR has no adequate remedy at law and is entitled to an injunction restraining Defendant and, as applicable, its officers, members, agents, servants, and employees, and all persons acting in concert with them, from engaging in further acts of infringement.

40. GNR is further entitled to recover from Defendant the actual damages that GNR has sustained, is sustaining, and/or is likely to sustain as a result of Defendant’s wrongful acts.

41. GNR is further entitled to recover from Defendant the gains, profits, and advantages that Defendant has obtained as a result of its wrongful acts.

42. Due to the willful nature of Defendant’s wrongful acts, GNR is entitled to an award of treble damages and increased profits under 15 U.S.C. § 1117.

43. Pursuant to 15 U.S.C. § 1117, GNR is also entitled to their costs of suit, and to recover their reasonable attorneys’ fees because this is an exceptional case.

SECOND CAUSE OF ACTION
(False Designation of Origin and Association in Violation of 15 U.S.C. § 1125(a))

44. GNR repeats and realleges each and every allegation of paragraphs 1 through 43, above, as though fully set forth herein.

45. Defendant’s unauthorized use of the GUNS N’ ROSES mark or marks confusingly similar thereto -- specifically, the marks GUNS N ROSE and/or GUNS ‘N’ ROSÉ -- in conjunction with Defendant’s business and its offering of beer and merchandise, Defendant’s false designation of origin, and Defendant’s false and misleading descriptions and representations of fact, as alleged herein, are likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Defendant with GNR, or as to the origin, sponsorship, or approval of Defendant’s goods or commercial activities by GNR in violation of 15 U.S.C. § 1125(a).

46. As a direct and proximate result of Defendant’s wrongful acts, GNR has suffered and continues to suffer and/or is likely to suffer damage to their trademarks, trade name, business reputation, and goodwill. Defendant will continue, unless restrained, to conduct its business and offer products using the GUNS N’ ROSES mark or other trademarks confusingly similar thereto and will cause irreparable damage to GNR. GNR has no adequate remedy at law and is entitled to an injunction restraining Defendant and, as applicable, its officers, members, agents, servants, and employees, and all persons acting in concert with them, from engaging in further acts of false designation of origin or association.

47. GNR is further entitled to recover from Defendant the actual damages GNR has sustained, is sustaining, and/or is likely to sustain as a result of Defendant’s wrongful acts. GNR is presently unable to ascertain the full extent of the monetary damages they have suffered and/or is likely to sustain by reason of Defendant’s acts of false designation of origin or affiliation.

48. GNR is further entitled to recover from Defendant the gains, profits, and advantages Defendant has obtained as a result of its wrongful acts. GNR is presently unable to ascertain the extent of the gains, profits, and advantages Defendant has realized by reason of its acts of false designation of origin or affiliation.

49. Due to the willful nature of Defendant’s wrongful acts, GNR is entitled to an award of treble damages and increased profits pursuant to 15 U.S.C. § 1117.

50. Pursuant to 15 U.S.C. §1117, GNR is also entitled to their costs of suit, and to recover their reasonable attorneys’ fees because this is an exceptional case.

THIRD CAUSE OF ACTION
(Trademark Dilution in Violation of 15 U.S.C.§ 1125(c))

51. GNR repeats and realleges each and every allegation of Paragraphs 1 through 50, above, as though fully set forth herein.

52. GNR began using the GUNS N’ ROSES mark before Defendant’s began promoting and using the marks GUNS N ROSE and/or GUNS ‘N’ ROSÉ. The GUNS N’ ROSES mark is inherently distinctive and has acquired distinction through GNR’s extensive, continuous, and exclusive use of it.

53. The GUNS N’ ROSES mark is famous and distinctive within the meaning of 15 U.S.C. §§ 1125(c)(1) and 1127.

54. Defendant’s use of the GUNS N’ ROSE and/or GUNS ‘N’ ROSÉ mark is likely to dilute by blurring the distinctive quality of the GUNS N’ ROSES mark in violation of 15 U.S.C. § 1125(c).

55. Defendant’s acts complained of herein are likely to damage GNR irreparably. GNR has no adequate remedy at law for such wrongs and injuries. The damage to GNR includes harm to their trademarks, goodwill, and reputation that money cannot compensate. GNR is therefore entitled to a preliminary and permanent injunction enjoining Defendant’s use of the GUNS N’ ROSE mark and the GUNS N’ ROSES mark or any marks likely to dilute the GUNS N’ ROSES mark in connection with the promotion, advertisement and sale of any goods or services offered by Defendant.

56. Due to the willful nature of Defendant’s actions, GNR is further entitled to recover from Defendant the actual damages sustained by GNR as a result of Defendant’s wrongful acts. GNR is presently unable to ascertain the full extent of the monetary damages they have suffered by reason of Defendant’s acts of dilution.

57. Due to the willful nature of Defendant’s actions, GNR is further entitled to recover from Defendant the gains, profits, and advantages Defendant has obtained as a result of its wrongful acts. GNR is presently unable to ascertain the extent of the gains, profits, and advantages Defendant has realized by reason of its willful acts of dilution.

58. Pursuant to 15 U.S.C. § 1117, GNR is also entitled to their costs of suit, to recover their reasonable attorneys’ fees because this is an exceptional case.

FOURTH CAUSE OF ACTION
(Common Law Trademark Infringement)

59. GNR repeats and realleges each and every allegation of Paragraphs 1 through 58, above, as though fully set forth herein.

60. Defendant has used in commerce, without GNR’s permission or authorization, the GUNS N’ ROSES mark or marks confusingly similar thereto -- specifically, GUNS N ROSE and/or GUNS ‘N’ ROSÉ mark -- in a manner that is likely to cause confusion with respect to the source and origin of Defendant’s goods and is likely to cause confusion or mistake and to deceive purchasers as to GNR’s affiliation, connection, or association with, or approval or sponsorship of, Defendant, its business, and/or its goods.

61. Defendant’s acts constitute infringement of the GUNS N’ ROSES mark in violation of the common law.

62. As a direct and proximate result of Defendant’s wrongful acts, GNR has suffered and continues to suffer and/or is likely to suffer damage to their trademarks, trade name, business reputation, and goodwill. Defendant will continue to use, unless restrained, the GUNS N’ ROSES mark or marks confusingly similar thereto, and will cause irreparable damage to GNR. GNR has no adequate remedy at law and is entitled to an injunction restraining Defendant and, as applicable, its officers, members, agents, servants, and employees, and all persons acting in concert with them, from engaging in further acts of infringement.

63. GNR is further entitled to recover from Defendant the actual damages GNR has sustained, is sustaining, and/or is likely to sustain as a result of Defendant’s wrongful acts.

64. GNR is further entitled to recover from Defendant the gains, profits, and advantages Defendant has obtained as a result of its wrongful acts.

65. Upon information and belief, Defendant has engaged in the conduct alleged above with oppression, fraud and malice. Accordingly, GNR is entitled to an award of punitive damages pursuant to Cal. Civ. Code § 3294 in an amount to be proved at trial.

FIFTH CAUSE OF ACTION
(Unfair Competition in Violation of Cal. Bus. & Prof. Code §§ 17200, et seq.)

66. GNR repeats and realleges each and every allegation of Paragraphs 1 through 65, above, as though fully set forth herein.

67. By reason of the foregoing, Defendant has been, and is, engaged in unlawful business practices in violation of §§ 17200 et seq. of the California Bus. & Prof. Code.

68. Defendant’s acts complained of herein have injured and will continue to injure GNR irreparably. GNR has no adequate remedy at law for these wrongs and injuries. The injury to GNR includes harm to their GUNS N’ ROSES mark, goodwill, and reputation in the marketplace that money cannot compensate. GNR is therefore entitled to:
(a) injunctive relief restraining and enjoining Defendant and, as applicable, its officers, members, agents, servants, and employees, and all persons acting thereunder, in concert with, or on their behalf, from using the GUNS N’ ROSES mark or any mark, name, symbol, or logo which is confusingly similar thereto, in connection with the marketing or sale of any goods or services by Defendant; and
(b) restitution of Defendant’s profits earned from its unauthorized use of the GUNS N’ ROSES mark or any mark, name, symbol, or logo which is confusingly similar thereto, in which profits GNR has a vested interest.

SIXTH CAUSE OF ACTION
(Common Law Unfair Competition)

69. GNR repeats and realleges each and every allegation of Paragraphs 1 through 68, above, as though fully set forth herein.

70. GNR invested substantial time and money in their development of the GUNS N’ ROSES mark.

71. Defendant used the GUNS N’ ROSES mark or marks confusingly similar thereto -- specifically, the GUNS N ROSE and/or GUNS ‘N’ ROSÉ mark -to build its business and/or pass off its products as GNR’s without GNR’s authorization.

72. Defendant passed off its goods offered under the GUNS N’ ROSES mark or marks confusingly similar thereto -- specifically, the GUNS N ROSE and/or GUNS ‘N’ ROSÉ mark -- in a manner likely to cause confusion as to the source of Defendant’s goods or as to GNR’s association or affiliation with, or sponsorship of, Defendant’s goods.

73. As a direct and proximate result of Defendant’s wrongful acts, GNR has suffered and continues to suffer and/or is likely to suffer damage to their trademarks, trade name, business reputation, and goodwill. Defendant will continue, unless restrained, to pass off its business as GNR’s and to conduct its business and offer goods using the GUNS N’ ROSES mark or other trademarks confusingly similar thereto and will cause irreparable damage to GNR. GNR has no adequate remedy at law and is entitled to an injunction restraining Defendant and, as applicable, its officers, members, agents, servants, and employees, and all persons acting in concert with them, from engaging in further acts of unfair competition.

74. GNR is further entitled to recover from Defendant the actual damages GNR has sustained, is sustaining, and/or is likely to sustain as a result of Defendant’s wrongful acts. GNR is presently unable to ascertain the full extent of the monetary damages they have suffered and/or are likely to sustain by reason of Defendant’s acts of unfair competition.

75. GNR is further entitled to recover from Defendant the gains, profits, and advantages Defendant has obtained as a result of its wrongful acts. GNR is presently unable to ascertain the extent of the gains, profits, and advantages Defendant has realized by reason of its acts of unfair competition.

76. Upon information and belief, Defendant has engaged in the conduct alleged above with oppression, fraud and malice. Accordingly, GNR is entitled to an award of punitive damages pursuant to Cal. Civ. Code § 3294 in an amount to be proved at trial.

SEVENTH CAUSE OF ACTION
(Misappropriation of Right of Publicity in Violation Cal. Civ. Code § 3344 and Common Law)

77. GNR repeats and realleges each and every allegation of Paragraphs 1 through 76, above, as though fully set forth herein.

78. Due to their more than three decades of hard work and near-unprecedented success, GNR’s “Guns N’ Roses” name has substantial commercial value and possesses considerable goodwill in the eyes of the public, in general, and purchasers of recorded music, concert tickets, and merchandise.

79. Defendant has knowingly misappropriated GNR’s name, and is using it on products, merchandise, and goods, and for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without GNR’s consent.

80. Defendant’s actions constitute misappropriation of GNR’s and its members’ (most notably Axl Roses’) right of publicity in violation of Cal. Civ. Code § 3344 and California common law.

81. As a direct and proximate result of Defendant’s wrongful acts, GNR GNR’s and its members’ (most notably Axl Roses’) have suffered and continues to suffer and/or is likely to suffer damage to their name, reputation, and goodwill. Defendant will continue, unless restrained, to use GNR’s name, without authorization, on products, and for purposes of advertising or selling, or soliciting purchases of products. GNR has no adequate remedy at law and is entitled to an injunction restraining Defendant and, as applicable, its officers, members, agents, servants, and employees, and all persons acting in concert with them, from engaging in further acts of misappropriation of GNR’s right of publicity.

82. GNR is further entitled to recover from Defendant the actual damages GNR has sustained, is sustaining, and/or is likely to sustain as a result of Defendant’s misappropriation of GNR’s right of publicity. GNR is presently unable to ascertain the full extent of the monetary damages they have suffered and/or are likely to sustain by reason of Defendant’s misappropriation of their right of publicity.

83. GNR is further entitled to recover from Defendant the gains, profits, and advantages Defendant has obtained as a result of its unauthorized use of GNR’s name. GNR is presently unable to ascertain the extent of the gains, profits, and advantages Defendant has realized by reason of its misappropriation of GNR’s right of publicity.

84. Upon information and belief, Defendant has engaged in the conduct alleged above with oppression, fraud and malice. Accordingly, GNR is entitled to an award of punitive damages pursuant to Cal. Civ. Code §§ 3294 and 3344(a) in an amount to be proved at trial.

85. Pursuant to Cal. Civ. Code § 3344(a), GNR is also entitled to recover its attorneys’ fees and costs.

PRAYER FOR RELIEF

WHEREFORE, GNR prays that this Court enter judgment against Defendant as follows:

1. Finding that Defendant has: infringed the GUNS N’ ROSES mark under 15 U.S.C. § 1114 and the common law; violated 15 U.S.C. § 1125(a); diluted the GUNS N’ ROSES mark under 15 U.S.C. § 1125(c); violated Cal. Bus. & Prof. Code § 17200 by engaging in unlawful business practices; committed unfair competition under the common law; and misappropriated GNR’s name in violation of Cal. Civ. Code § 3344 and the common law;

2. Ordering that Defendant and, as applicable, its officers, agents, servants, directors, employees, servants, partners, representatives, assigns, successors, related companies, and attorneys and all persons in active concert or participation with Defendant or with any of the foregoing be enjoined preliminarily during the pendency of this action and permanently thereafter from:
(a) Manufacturing, transporting, promoting, importing, advertising, publicizing, distributing, offering for sale, or selling any goods or services offered under the GUNS N ROSE or GUNS ‘N’ ROSÉ marks, the GUNS N’ ROSES mark, or any other mark, name, symbol, or logo, which is likely to cause confusion or to cause mistake or to deceive persons into the erroneous belief that any goods or services that Defendant caused to enter the stream of commerce or any of Defendant’s commercial activities are sponsored or licensed by GNR, are authorized by GNR, or are connected or affiliated in some way with GNR or the GUNS N’ ROSES mark;
(b) Manufacturing, transporting, promoting, importing, advertising, publicizing, distributing, offering for sale, or selling any goods or services offered under the GUNS N ROSE or GUNS ‘N’ ROSÉ marks, the GUNS N’ ROSES mark, or any other mark, name, symbol, or logo that is a copy or colorable imitation of, incorporates, or is confusingly similar to the GUNS N’ ROSES mark;
(c) Implying GNR’s approval, endorsement, or sponsorship of, or affiliation or connection with, Defendant’s goods, services, or commercial activities, passing off Defendant’s products as that of GNR’s, or engaging in any act or series of acts which, either alone or in combination, constitutes unfair methods of competition with GNR and from otherwise interfering with or injuring the GUNS N’ ROSES mark or the goodwill associated therewith;
(d) Engaging in any act which is likely to dilute the distinctive quality of the GUNS N’ ROSES mark;
(e) Representing or implying that Defendant is in any way sponsored by, affiliated with, or licensed by GNR;
(f) Misappropriating GNR’s “Guns N’ Roses” name and/or using GNR’s name on products, merchandise, and goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without GNR’s consent.
(g) Knowingly assisting, inducing, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in Paragraphs 2(a) to (f) above.

3. Ordering that Defendant be required to deliver to GNR for destruction any and all products, merchandise, digital files, packaging, printed graphics, promotional materials, business cards, signs, labels, advertisements, flyers, circulars, and any other items in any of its possession, custody, or control bearing the GUNS N ROSE or GUNS ‘N’ ROSÉ marks, the GUNS N’ ROSES mark, or any other mark, name, symbol, or logo that is a copy or colorable imitation of, incorporates, or is confusingly similar to the GUNS N’ ROSES mark;

4. Ordering that Defendant be required to recall and deliver to GNR for destruction any and all products bearing the GUNS N ROSE or the GUNS ‘N’ ROSÉ marks or the GUNS N’ ROSES mark from retailers or distributors to which it sold such products;

5. Granting an award of damages suffered by GNR according to proof at the time of trial;

6. Ordering that Defendant account to GNR for any and all profits earned as a result of Defendant’s acts in violation of GNR’s rights under the Lanham Act and the common law and misappropriation of GNR’s right of publicity in violation of Cal. Civ. Code § 3344;

7. Granting an award of three times the amount of compensatory damages and increased profits pursuant to 15 U.S.C. § 1117;

8. Ordering restitution of Defendant’s profits earned from its unauthorized use of the GUNS N’ ROSES mark or any mark, name, symbol, or logo which is confusingly similar thereto, in which profits GNR has a vested interest, pursuant to Cal. Bus. & Prof. Code § 17200, et seq.;

9. Granting an award of punitive damages for the willful and wanton nature of Defendant’s aforesaid acts under the common law;

10. For pre-judgment interest on any recovery by GNR;

11. Granting an award of GNR’s costs, expenses, and reasonable attorneys’ fees; and

12. Granting such other and further relief as is just and proper.

Respectfully submitted,
Sheppard Mullin Richter & Hampton LLP

Dated: May 9, 2019

By: /s/Jill M. Pietrini
Jill M. Pietrini
Benjamin O. Aigboboh
Attorneys for Plaintiff GUNS N’ ROSES

JURY DEMAND

GNR demands a trial by jury of all issues triable by jury.

Respectfully submitted,
Sheppard Mullin Richter & Hampton LLP

Dated: May 9, 2019

By: /s/Jill M. Pietrini
Jill M. Pietrini
Benjamin O. Aigboboh
Attorneys for Plaintiff GUNS N’ ROSES

Attachments

: 01. 2019.05.09 - GNR Vs. Oskar Blues Brewery - lawsuit document.pdf You don't have permission to download attachments.(459 Kb) Downloaded 0 times

by **Blackstar** Mon Mar 18, 2024 9:09 pm

As mentioned in the lawsuit, on March 26, 2019, GN'R had filed a Notice of Opposition with the U.S. Patent and Trademark Office:

Attachments

: 0. 2019.03.26 - GNR Vs. Oskar Blues - Trademark Opposition (pre-lawsuit).pdf You don't have permission to download attachments.(11.4 Mb) Downloaded 0 times

by **Blackstar** Mon Mar 18, 2024 9:15 pm

The Blast, May 9, 2019:
------------------------------

Guns N’ Roses Sues Over Knockoff Guns ‘N’ Rose Beer and Merchandise

Guns N’ Roses has run out of patience (yeah, yeahhhhhhhh) and has decided to sue a company they claim has been selling a knockoff beer named after them without their permission.

According to court documents obtained by The Blast, Axl Rose, Slash and Duff McKagan have come together to sue Canarchy Craft Brewery Collective over a beer they’ve been selling called Guns ‘N’ Rose.

In addition, the band claims the company has been selling hats, t-shirts, pint glasses, stickers, buttons, and bandannas with the name on them.

GNR claims Canarchy tried to trademark the name but after the band objected, they agreed to abandon the application.

Axl and the boys claim they reached out several times to tell them to stop selling all the goods completely and claim Canarchy agreed to stop … but not until March 2020.

That idea didn’t fly with GNR but they claim Canarchy “has refused to immediately and completely cease sales and marketing” the beer and all the goods.

Guns N’ Roses is suing for trademark infringement and seeking unspecified damages.

https://theblast.com/46422/guns-n-roses-beer-lawsuit/

by **Blackstar** Mon Mar 18, 2024 9:16 pm

Blabbermouth, same date:
-------------------------------

Guns N' Roses Sues Colorado Brewery Over 'Guns 'N' Rosé' Beer

According to The Blast, Guns N' Roses has filed a lawsuit against a company it claims has been selling a knockoff beer named after the band.

Canarchy Craft Brewery Collective has allegedly been seeling a beer called Guns 'N' Rosé through its portfolio of craft breweries, which includes Oskar Blues Brewery. In addition, the band claims the company has been selling hats, t-shirts, pint glasses, stickers, buttons, and bandannas with the Guns 'N' Rosé name on them.

Guns 'N' Rosé is described as "a 6 percent ABV ale brewed with hibiscus and prickly pear."

Axl Rose, Slash and Duff McKagan claim Canarchy tried to trademark the name but after the band objected, the Fireman Capital-backed brewery consortium agreed to abandon the application.

Guns N' Roses claims Canarchy agreed to stop all the goods completely, but not until March 2020.

"As of the filing of this Complaint, Defendant's Guns 'N' Rosé beer continues to be sold at retailers such as BevMo, and Defendant's infringing Guns N Rose merchandise continues to be sold on Defendant's website," reads the complaint. "Defendant should not be entitled to continue to sell infringing products and intentionally trade on the GNR's goodwill, prestige, and fame without GNR's approval, license, or consent."

The band is suing for trademark infringement and is seeking unspecified damages.

https://blabbermouth.net/news/guns-n-roses-sues-colorado-brewery-over-guns-n-rose-beer

by **Blackstar** Mon Mar 18, 2024 9:16 pm

The Charlotte Observer, May 12, 2019:
-----------------------------------------------

Brewery’s Guns ‘N’ Rosé ale strikes a sour note with band Guns N’ Roses, suit says

By Don Sweeney

A Colorado brewery’s cheeky Guns ‘N’ Rosé ale is no laughing matter, a court suit filed by the band Guns N’ Roses says.

The band filed suit against Oskar Blues Brewery on Thursday in Los Angeles on accusations of trademark infringement, according to The Hollywood Reporter.

The Longmont brewery began selling the similarly named craft ale at least as far back as 2018 without the band’s approval, the suit says. It also sells T-shirts, glasses and other merchandise with the logo.

The band’s particularly upset by the brewery’s sale of bandannas, which the suit says “are uniquely associated with GNR and their lead singer and general partner Axl Rose.”

In August, Oskar Blues Brewery filed to trademark Guns ‘N’ Rosé ale, but dropped the filing after the band objected, the suit says.

Guns N’ Roses also sent the brewery a letter demanding that it stop selling the ale and related merchandise, according to the lawsuit.

In a letter, the brewery argued that its Guns ‘N’ Rosé ale did not infringe on the band’s trademark because the rockers do not sell beer or other beverages, the lawsuit says.

Sales of the ale continue, including sales through BevMo and other outlets, according to the suit.

Along with harming the band’s “trademarks, trade name, business reputation, and goodwill,” the craft ale name creates confusion and wrongly suggests the band endorses the brew, the suit says.

“Defendant should not be entitled to continue to sell infringing products and intentionally trade on the GNR’s goodwill, prestige, and fame without GNR’s approval, license, or consent,” the suit says.

Oskar Blues Brewery, which also does business as Canarchy Craft Brewing Collective, did not respond to requests from comment on the suit from CNN, the network reported.

A November 2018 post on the brewery’s Twitter account describes Guns ‘N’ Rosé ale as having a ”sticky prickly pear and floral hibiscus with a subtle hop profile.”

Guns N’ Roses, which formed in 1984 in Los Angeles, has such hits as “Welcome to the Jungle,” “Paradise City,” and “November Rain,” according to the Rock & Roll Hall of Fame. The band was inducted in 2012.

https://www.charlotteobserver.com/news/nation-world/national/article230315439.html

by **Blackstar** Mon Mar 18, 2024 9:17 pm

Westworld, May 14, 2019:
---------------------------------

The Real Story Behind the Oskar Blues/Guns N' Roses Lawsuit
Just how famous is Axl Rose?

By Jonathan Shikes

Oskar Blues is one of the smartest players in craft beer today. The creator of Dale’s Pale Ale, which can be found in just about every corner of the country, was also the first craft brewery to can its beer, the inventor of the Crowler machine, and the force behind Canarchy, a collective of seven investor-backed beer companies that together have become the eighth-largest craft brewery in the U.S. The Longmont-based brewery is always on message, always on point and always two steps ahead.

So why would Oskar Blues make a blunder like the one that got it sued last week by Guns N' Roses, the iconic ’80s metal band fronted by Axl Rose, which objected to the brewery’s use of the name Guns 'N' Rosé for one of its most recent canned beers?

There’s no easy answer to that question — and Oskar Blues declined to comment for this story — but court documents filed in the Central District Court of California shed some light on how the dispute between the band and brewery developed, and why at least one of the parties is likely to end up writing a big check.

In August 2018, Oskar Blues filed a trademark application for Guns ‘N’ Rosé, brewed with hibiscus and prickly pear. The rosé style, which plays off the dry, tart or fruity flavors and the pinkish color of rosé wines, gained popularity last year and recently has really taken off, with most major craft breweries releasing a version.

Last September, the federal Alcohol and Tobacco Tax and Trade Bureau (TTB) approved the brewery’s striking black-and-pink label for Guns ‘N’ Rosé. When I saw it, I wondered if the famously music-forward brewery had struck up a partnership with the band. If not, the name was clearly a lawsuit magnet, so I wondered if Oskar Blues was trying to elicit a cease-and-desist simply for the media attention, as some other breweries have done. It didn’t seem like the brewery’s modus operandi, but then again, Oskar Blues had also filed a bewildering trademark application for the Queen of Beers — another lawsuit magnet — that it later abandoned.

In December, the band’s business manager called the brewery’s CEO, according to the lawsuit filed May 9. When their informal conversation went nowhere, the band’s lawyer sent a cease-and-desist letter to Oskar Blues and its founder, Dale Katechis, dated December 21, 2018.

“GNR has earned widespread recognition by virtue of the band’s remarkable success and thirty year existence,” the letter read. “GNR owns and has registered the name and trademark Guns N' Roses in various countries, including in the United States, for use with clothing, musical sound recordings, and musical performances.”

The band also protested the brewery’s trademark with the TTB.

A month later, Oskar Blues attorney Katie Bukrinsky wrote back, disputing the band’s ownership of the trademark when it comes to alcoholic beverages. Trademarks are most often issued and awarded for specific categories of products and services; she pointed out that the band doesn’t own the trademark on its name when it comes to beer or any other alcoholic beverage.

“Oskar Blues named its beer Guns ‘N’ Rosé as a reference to the fact that its beer is a rosé-style ale with a crisp profile,” Burkinsky wrote. “There are other alcohol beverage producers using the same name, including at least two Guns N’ Rosé wines. … We believe that Oskar Blues’ beer can similarly coexist without creating any likelihood of confusion or dilution of GNR’s marks.

“We trust that our response above resolves this matter,” she concluded.

It didn't, and in February, Oskar Blues released the beer across its nationwide footprint — promoting it on social media and selling it in cans and on draft. But on March 13, it received another letter from the band. And this is where things get more interesting, explains Mike Drumm, a Denver attorney who specializes in trademark law for dozens of local — and national — breweries. “Guns N Roses is using the ‘famous’ trademark argument — since it does not make beer — in asserting its rights,” he says.

A mark is considered to be "famous" under the Trademark Act of 1946 (known as the Lanham Act) if it is “widely recognized” in the United States by the general public — a household name, in other words. Google is famous. So is Walmart, Apple, Coca-Cola, Nike and McDonald’s. Even Victoria’s Secret is famous. As such, they enjoy more legal protection than other trademarks. But proving that a trademark has that kind of recognition can be tricky. Some marks are simply “popular,” without being famous. To prove fame, the applicant must show the “volume and reach of the sales of the products offered bearing the mark.”

Is Guns N’ Roses that famous? Do Axl Rose and Slash, “Welcome to the Jungle” and “Sweet Child of Mine” deserve the same respect as the Big Mac? After apologizing for the delay in its response, the firm of Sheppard Mullin Richter & Hampton, representing Guns N' Roses, asserted that the band is, indeed, that “famous” and therefore entitled to wider trademark protections.

It once again demanded that the brewery stop selling the beer and abandon its trademark application — but left the door open for an “amicable” resolution.

It also, amusingly, scolded the brewery in true beer-geek fashion: “We do not accept the explanation that Oskar Blues named its product Guns ‘N’ Rosé based solely on the alleged color and taste profile of its beer. There are many words that Oskar Blues could have used to identify the purported 'rosé-style ale' of its beer; Oskar Blues specifically chose to use a variation of GNR’s famous trademark instead.”

Oskar Blues replied with some scolding of its own, then threw down the gauntlet. “We are in receipt of your March 13 letter. We were surprised to receive it as it came almost two months after our January 22 response. During that two-month interval, my client reasonably believed that our correspondence had allayed your client’s concerns, and continued with its plans to release its Guns N’ Rose beer,” Burkinsky wrote.

She went on to dispute the band’s claims of trademark infringement — and then took a direct shot. “We see no evidence that your client has reached a level of fame to warrant the extraordinary remedies of the Trademark Dilution Revision Act of 2006.” Ouch. (Apparently, dating a Sports Illustrated supermodel ain't what it used to be.)

“We furthermore note that your client’s delay in responding to our letter, especially in light of its knowledge that Oskar Blues was planning to release the Guns 'N' Rosé beer in cans in February 2019, has caused significant prejudice to Oskar Blues. Had my client known prior to that release that your client had continued objections, it could have considered other arrangements. At this point, rebranding and repackaging its beer requires significant time, effort, and expense,” she continued.

And finally, Burkinsky said that while Oskar Blues was willing to abandon its trademark application and permanently cease all sales of Guns 'N' Rosé beer and related merchandise, it wouldn’t do so before March 31, 2020.

The band's attorneys filed suit on May 9, demanding full damages and pointing out that Oskar Blues hadn’t exactly been conciliatory.

In the meantime, Canarchy had applied for three more TTB labels for the same beer, using two new names, Can-O-Blush, a play off its new Can-O-Bliss IPA, and Rose All Day — which comes with the tagline: Heavy Metal Banned (see below). So, no, not exactly conciliatory at all.

How will this play out in court? Most trademark cases are settled behind the scenes. But if the case goes to trial, it will be interesting to watch Guns N' Roses try to prove its alleged "famous" status.

https://www.westword.com/restaurants/guns-n-roses-finally-filed-suit-again-oskar-blues-heres-the-real-story-11342812

by **Blackstar** Mon Mar 18, 2024 9:18 pm

Article on the website of Udl (a British firm specialising in intellectual property law), May 21, 2019:
----------------------------------------------------------------------------------------------------------------------

Guns N’ Rosé — welcome to the IP jungle

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.

https://www.udl.co.uk/insights/guns-n-rose-welcome-to-the-ip-jungle

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