Molson Coors Beverage Company v. Anheuser-Busch Companies, LLC ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-2200, 19-2713, 19-2782, 19-3097 & 19-3116
MOLSON COORS BEVERAGE COMPANY USA LLC,
Plaintiff-Appellant, Cross-Appellee,
v.
ANHEUSER-BUSCH COMPANIES, LLC,
Defendant-Appellee, Cross-Appellant.
____________________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 19-cv-218-wmc — William M. Conley, Judge.
____________________
ARGUED SEPTEMBER 23, 2019, and APRIL 28, 2020 —
DECIDED MAY 1, 2020
____________________
Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit
Judges.
EASTERBROOK, Circuit Judge. Bud Light, Miller Lite, and
Coors Light are the best-selling light beers in the United
States. Bud is made by Anheuser-Busch, Miller and Coors by
Molson Coors (called MillerCoors when this case began).
The beers’ producers regularly a]ack each other in print and
televised campaigns. For example, Miller is touted with the
2 Nos. 19-2200 et al.
slogan “Tastes Great, Less Filling”. Early in 2019 Anheuser-
Busch began to advertise that Bud Light is made using rice,
while Miller Lite and Coors Light use corn syrup as a source
of sugar that yeast ferments into alcohol.
Molson Coors responded in the market and in court. In
the market it advertised that its beers taste be]er because of
the difference between rice and corn syrup (which, it added,
differs from the high-fructose corn syrup used to sweeten
soft drinks and other consumer products). In court it con-
tended that Anheuser-Busch violates §43 of the Lanham Act,
15 U.S.C. §1125, by implying that a product made from corn
syrup also contains corn syrup.
The district judge’s initial opinion concluded that An-
heuser-Busch is free to advertise that Bud Light is made us-
ing rice while Molson Coors’s products are made using corn
syrup. MillerCoors, LLC v. Anheuser-Busch Cos., 385 F. Supp.
3d 730 (W.D. Wis. 2019). The judge added, however, that
Anheuser-Busch cannot say or imply anything that would
cause consumers to think that its rival’s products contain
corn syrup. The opinion ended with a statement that most
but not all of Anheuser-Busch’s advertising is proper. Mol-
son Coors appealed; Anheuser-Busch did not.
While the appeal was pending, the district judge issued a
new order, purporting to amend the existing one, forbidding
Anheuser-Busch from using point-of-sale packaging with
the language “no corn syrup” or an equivalent icon. 2019
U.S. Dist. LEXIS 149954 (W.D. Wis. Sept. 4, 2019). Anheuser-
Busch appealed from that order. Two days later the district
judge modified the modification, 2019 U.S. Dist. LEXIS 152559
(W.D. Wis. Sept. 6, 2019), and Anheuser-Busch appealed
again.
Nos. 19-2200 et al. 3
When the appeals were argued at the end of last Septem-
ber, only the first of the district court’s decisions had been
covered by the briefs. And the oral argument was dominated
by procedural questions rather than the merits. The district
court had not issued an injunction complying with Fed. R.
Civ. P. 65(d)—and by modifying each decision after an ap-
peal had been filed, the district court raised some complex
questions about both its jurisdiction and ours. Seeking to
clear the way for a substantive decision, we remanded with
instructions to issue a proper preliminary injunction that
would cover all of the issues that the district court’s three
separate orders had resolved. MillerCoors LLC v. Anheuser-
Busch Cos., 940 F.3d 922 (7th Cir. 2019). The district court is-
sued such an order, and cross-appeals were filed. After re-
ceiving a new round of briefs, we heard oral argument a
second time and now can tackle the merits.
The briefs take us on a tour of trademark law, covering
issues both procedural (such as when a district court may
presume, or find, irreparable injury) and substantive (such
as when an advertiser’s knowledge that some consumers
will misunderstand truthful statements should be taken as
equivalent to an intent to deceive them). Compare Mead
Johnson & Co. v. AbboA Laboratories, 201 F.3d 883 (7th Cir.
2000), modified on denial of rehearing, 209 F.3d 1032 (7th
Cir. 2000), with Eli Lilly & Co. v. Arla Foods, Inc., 893 F.3d 375
(7th Cir. 2018). We have concluded, however, that it is not
necessary to pursue any of those issues, because this case is
and always has been simple.
The basic contention has been that the true statement
“their beer is made using corn syrup and ours isn’t” wrongly
implies that “their beer contains corn syrup”. Molson Coors
4 Nos. 19-2200 et al.
acknowledges that Miller Lite and Coors Light are made us-
ing corn syrup, while Bud Light is not. Molson Coors also
identifies corn syrup as an “ingredient” in Miller Lite and
Coors Light. The ingredient list for Miller Lite is: “Water,
Barley Malt, Corn Syrup (Dextrose), Yeast, Hops and Hop
Extract”. See
h]ps://www.molsoncoors.com/sites/molsonco/files/Molson
%20Coors%20US%20Product%20Nutritional%20Information
%203-16-20_0.pdf. The ingredient list for Coors Light is:
“Water, Barley Malt, Corn Syrup (Dextrose), Yeast, Hop Ex-
tract”. Ibid.
Molson Coors insists that a list of “ingredients” differs
from what the finished products “contain”. That’s possible,
and the omission of alcohol from the list of ingredients could
support a conclusion that Molson Coors treats that word as a
synonym for “inputs”. Yet common usage equates a prod-
uct’s ingredients with its constituents—indeed, some of Mol-
son Coors’s own managers testified that a beer “contains”
what’s on the ingredients list. At all events Anheuser-Busch
has not advertised that its rival’s products “contain” corn
syrup. True, it has made statements from which some con-
sumers doubtless infer that some corn syrup avoids fermen-
tation and makes it into the beer. Still, Molson Coors’s own
statements yield the same inference. Many people infer from
a list of a finished product’s “ingredients” that things on the
list are in the finished product. If Anheuser-Busch has led
consumers to believe this, it is hard to see why those state-
ments can be enjoined.
By choosing a word such as “ingredients” with multiple
potential meanings, Molson Coors brought this problem on
itself. It is enough for us to hold that it is not “false or mis-
Nos. 19-2200 et al. 5
leading” (§1125(a)(1)) for a seller to say or imply, of a busi-
ness rival, something that the rival says about itself. Whether
that “something” is good because it improves flavor (Miller
and Coors’s take) or bad (Bud’s) is for consumers rather than
the judiciary to decide. If Molson Coors does not like the
sneering tone of Anheuser-Busch’s ads, it can mock Bud
Light in return. Litigation should not be a substitute for
competition in the market.
The judgment is affirmed to the extent that it denies Mol-
son Coors’s request for an injunction (and is challenged in
Molson Coors’s two appeals) and reversed to the extent that
the Bud Light advertising or packaging has been enjoined
(and is challenged in Anheuser-Busch’s three appeals). To
the extent that the injunction prevents Anheuser-Busch from
stating that Miller Lite or Coors Light “contain” corn syrup,
it is vacated. (Because Anheuser-Busch has never stated this,
or said that it wants to do so, that aspect of the order is advi-
sory.) The case is remanded to the district court for further
proceedings consistent with this opinion. The first issue on
remand will be whether any question remains for trial, or
whether our decision instead wraps up the proceedings.