Eveready Battery Company v. Adolph Coors Company

The following case brief is in honor of the late great Leslie Nielsen who passed away last week. (Don’t call him Shirley!!!)
Eveready Battery Company, Inc.,
Adolph Coors Company
765 F. Supp. 440 (United States District Court, N.D. Illinois, Eastern Division)

The case arose from a commercial that defendant company Coors produced which spoofs the famous “Energizer Bunny” ads.
After Eveready’s initial Energizer Bunny commercial they hired the ad agency, Chiat/Day/Mojo Inc. to help them develop an ad campaign that revolved around the small mechanical pink bunny. The agency came up with the idea of a “commercial within a commercial.” The add began with what appeared to be a commercial for a totally unrelated product to batteries when all of a sudden the Energizer Bunny would disrupt the scene coming in pounding his drum, spin around once, and then exiting the screen, all to the bewilderment of the actors starring in the “commercial within a commercial.” A voice off camera states that energizer batteries, “Keep going and going and going.” Around 20 of these ads were created and used.
On 9/11/89, Eveready filed for trademark registration of its Energizer Bunny. It had also already obtained federal copyright registration for two of its bogus products appearing in the commercials within the commercial.
In late 1990, Coors decided that it would produce a humorous commercial to help promote Coors Light. The advertising agents for Coors; Foote, Cone, and Belding Communications, Inc., were giving the task of creating a humorous commercial involving Leslie Nielsen. After careful planning it was decided that he would star in a commercial that made a parody of the Energizer Bunny.
In the Coors commercial, it begins with what appears to be just another beer ad, until everything grinds to a halt and Mr. Nielsen appears walking across the scene. He is wearing a conservative, dark business suit, fake white rabbit ears, fuzzy white tail and rabbit feet which look like pink slippers. He carries a drum with the Coors Light logo on it. After beating the drum, he spins around several times and after recovering from his dizziness resumes walking. A voice off stage says that, “Coors Light, the official beer of the nineties, is the fastest growing light beer in America. It keeps growing and growing and growing.”
After portions of the commercial were shown on the television show, Entertainment Tonight, “cease and desist” letters were sent to Coors and the networks that bought the commercial. The networks responded that they would not play the Nielsen commercial until Eveready and Coors had resolved their dispute.

Eveready sought to enjoin Coors’ use of the disputed beer commercial, alleging copyright infringement, trademark infringement under the Lanham Act, and trademark dilution under the Illinois Anti-Dilution Act.

1. Whether the copied elements of the Energizer commercials constitute protectable original “expressions”-as opposed to unprotectible “ideas,” and whether the extent of the copying was sufficient to constitute an improper appropriation.
2. Whether Coors’ presentation of Leslie Neilsen in bunny ears, tail and feet, while banging on a bass drum, is sufficient “to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association” of Mr. Neilsen or Coors Light with Eveready or the Energizer Bunny symbol.
3. Whether there was an erosion of Eveready’s mark in light of the Coors’ commercial.

1. Eveready did not show likelihood of success on the merits of its claim that Coors was infringing its copyrighted commercial featuring the Energizer Bunny, since Coors established likelihood of success on fair use/parody defense
2. Eveready did not show likelihood of success on claim that Coors’ commercial created a likelihood of confusion
3. Eveready did not establish likelihood of success on the merits of its claim of dilution of the trademark under Illinois law.

The Court first looked to the substantial similarity analysis which looks at, whether the accused work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of substance and value. Eveready recited a list of eleven similarities between its own commercial and the one Coors’ produced. The Court found that none were overwhelming. The Court also looked at Section 107 of the Copyright Act which sets out four factors in which they could overcome a fair use argument. They include:
1. The purpose and character of the use, including whether such use is a commercial nature or is for nonprofit educational purpose
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
While Eveready argued that, “the promotion for sale of commercial products cannot constitute parody as a matter of law,” the Court responded with “Although the primary purpose of most television commercials may be to increase product sales and thereby increase income, it is not readily apparent that they are therefore devoid of any artistic merit or entertainment value.” Pointing to the fact that not all viewers who laugh at a commercial will buy the advertised product. The Court finds that Eveready has some merit in the first factor of the four factor test but in this case the nature of the copyrighted work, like the character of the challenged work, is commercial.
Next, the court found that the amount and substantiality of the portion used in relation to the copyrighted work as a whole was not sufficient to weigh in favor of Eveready. The Court stating that a parody is entitled at least to “conjure up” the original and that the Coors spot did not borrow an impermissible amount of the Eveready commercials. It merely incorporated certain elements of those commercials necessary to conjure an image of Eveready spots for humorous effect. Finally, the Court found that Eveready also failed the fourth prong of the test. Infringement occurs when a parody supplants the original in markets the original is aimed at, or in which the original is or has reasonable potential to become, commercially valuable. There was no indication that the Coors commercial would supplant the market for the Eveready commercial. Viewers would not stop watching the Eveready commercial in order to watch the Coors commercial on another channel.
In regards to trademark infringement the Court found that the Coors’ commercial was not likely to cause confusion, or to cause mistake, or to deceive the consumer that it was actually promoting Eveready. After looking at the seven factors lain out by the seventh circuit which may be important to likelihood of confusion the Court found that the only factor which weighed in favor of Eveready was the strength of its mark. However, the very strength of the Energizer Bunny mark weighed against its likelihood of confusion.
Finally as to the claim on trademark dilution, which was enacted by Illinois law for additional protection to trademark owners by preventing the disparagement or erosion of their marks through use by third parties on non-confusing, non-competing products, the Court ruled that Energizer had not established a likelihood that Coors’ commercial was likely to dilute the distinctiveness of its mark or the power of the association which that mark has created. When Eveready argued that all the elements of their commercial were protected under trademark law, however, the Court pointed out that only the Energizer Bunny itself was protected under the current Trademark.

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