Appeal Falls Flat at the Ninth Circuit Over Keystone Light Consumer Surveys

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Appeal Falls Flat at the Ninth Circuit Over Keystone Light Consumer Surveys, Op. 1, No. 44

Stone Brewing is a craft brewer based in California. It brews its "STONE" line of beers:

Stone Brewing sued Molson Coors for infringing on the "STONE" trademark. This brouhaha came to a head after Molson Coors rebranded its Keystone Light to accentuate the "Stone" part in its name, as alleged in several examples in the Complaint, including this one:

Stone Brewing ultimately landed a keg-sized $56 million jury verdict. Just before New Year's Eve, Molson Coors' appeal fizzed out when the Ninth Circuit refused to remand the case for a new trial. Stone Brewing Co., LLC v. Molson Coors Bev. Co. USA LLC, No. 23-3142, 2024 U.S. App. LEXIS 32846 (9th Cir. Dec. 30, 2024).

One reason Molson Coors wanted another shot was based on Stone Brewing's flawed consumer surveys where respondents were allegedly shown altered, misleading images.

For example, in one of the consumer surveys that allegedly showed "confusion," Stone Brewing used the following Keystone can with "STONE" emblazoned on it (apologies for the blurry depiction--its not you!):

Coors Molson cried foul at trial. Why? For a couple of reasons. First, the above image is a cutout from a case of Keystone packaging, and a limited-time packaging no less. This stimulus did not show consumers the whole context in how an actual can is encountered in the marketplace with "Key" in close proximity to "Stone":

Second, Molson Coors also pointed out that this survey used a Squirt "array" including depictions of other beer brands, all of which were photographs of the actual cans (not cutouts from packaging):

In essence, Molson Coors argued that Stone Brewing's survey was "ginned up" to present respondents with a highly misleading depiction of the new Keystone Light can, shown in isolation and out of context.

These arguments, however, fell flat before the trial court—and the Ninth Circuit wasn't exactly effervescent about them either. The Court dispatched Molson Coors' argument rather tersely:

Molson Coors first alleges that there must be a new trial because the district court allowed survey evidence into the record that featured 'altered' images of Keystone Light showing?the word 'Stone' by itself. But the packaging in which the cans were sold did feature the word 'Stone' on a can in relative isolation. And cases of Keystone Light, as well as several advertisements released by Molson Coors, showed images of the can as the survey described.

Stone Brewing Co., LLC, at *6-7 (emphasis in original).

The jury's verdict stands.

The Takeaway. It is usually problematic to alter or otherwise crop a survey stimulus in a manner that removes the isolated portion from other source identifying material. This issue did not appear to give the Ninth Circuit much pause, at least under the deferential "abuse of discretion" standard that applies to evidentiary rulings.

But a note of caution before you snip and crop that survey stimulus: Stone Brewing's surveys may have foamed out if this case was litigated elsewhere. See, e.g., THOIP v. Walt Disney Co., 690 F. Supp. 2d 218, 238 (S.D.N.Y. 2010) (observing that survey did not replicate marketplace conditions as “shirts used in the survey did not bear the neck labels?and hang?tags?that would have been attached to the shirts in the marketplace”). ?

The Ninth Circuit's decision can be found here. The survey discussion starts on page 6.