The Australian makers of Yellow Tail wine, the best-selling wine in the United States recently filed suit against The Wine Group LLC, the maker of Little Roo, in a New York federal court, alleging trademark infringement.  At issue is the likelihood of consumer confusion based on the depiction of a Yellow Tail Wallaby and the Little Roo Kangaroo on the respective labels of each winemaker.

Yellow Tail believes that its wine is so popular that consumers “have come to immediately associate use of a profile view of a kangaroo” with its wine.  In court papers Yellow Tail argues that the lower priced Little Roo has devalued its brand. Yellow Tail alleges that the kangaroo on the Little Roo label is oriented similarly to its own depiction of the Yellow Tail wallaby, that most people can’t distinguish between a wallaby and a kangaroo and that Little Roo’s label features similar colors and lettering.

In response, the Wine Group “denies that the Australian wallaby is interchangeably referred to as a kangaroo.” The Wall Street Journal quotes the Wine Group’s David Kent as saying that the concept is totally different and that the Wine Group was looking for a way of communicating a strong sense of place. The Wall Street Journal also states that at least 10 different Australian wines feature a kangaroo or wallaby.

In the field of trademark law, likelihood of confusion is the legal test by which trademark infringement suits are prosecuted.  The purpose of a trademark is to prevent consumer confusion.  The determination of whether a mark is too similar to another is not based on a side by side comparison of the marks, but rather on whether or not consumers are likely to be confused as to the source, affiliation or sponsorship of the goods.  In determining whether a likelihood of confusion exists, courts look at a variety of factors including, but not limited to, the channels of trade in which the marks travel, the types of consumers targeted by the mark owners, the appearance, sound, spelling, commercial impression, meaning and connotation of the marks and other relevant factors.

While the court will ultimately decide whether the two marks are confusingly similar, what do you think? Would consumers reasonably believe that Little Roo is somehow sponsored affiliated with or endorsed by Yellow Tail?  Is Little Roo unfairly capitalizing on Yellow Tail’s brand equity?  Do you immediately associate a profile view of a kangaroo with Yellow Tail?

Representing various clients including consumer goods retailers and service industry vendors such as software and technology companies, the attorneys at the Chicago law firm of Marcus Stephen Harris, LLC, secure trademark rights for their clients via filing trademark applications both in the United States and abroad. The firm frequently enforces the trademark rights of its clients against infringers and defends its clients against false allegations of infringement.

For more information on trademark registration, policing and infringement actions, please visit Marcus Stephen Harris, LLC online and contact the firm directly through the contact portal.  Marcus Stephen Harris, LLC represents a range of clients from top-tier international companies to start-ups who need intellectual property counsel.