Mark Anthony Brands International, which makes White Claw hard seltzer, brought a lawsuit against Vital Pharmaceuticals, Inc, and Bang Energy, LLC, which makes Bang Energy drinks and the newly released MIXX hard seltzer on Monday.
The lawsuit filed in New York Federal Court alleges that “MIXX” infringes on Mark Anthony’s intellectual property. The plaintiff was granted trademark registration for “MXD” by the US Patent and Trademark office on June 18, 2019. MXD uses include prepared alcoholic cocktails and flavored alcoholic malt coolers. In its trademark application, the company documented first use in commerce of MXD dating back to February of 2018.
In the complaint, Mark Anthony lawyers state that more than 1 million cans of MXD are sold annually. “Consumers seeing Defendants’ MIXX flavored malt beverages likely will be confused into believing that they come from, or are associated with, or are a brand extension of, Mark Anthony’s MXD flavored malt beverages,” the lawsuit argues.
“If Defendants are not enjoined from infringing Mark Anthony’s MXD mark,” the lawsuit continues, “Mark Anthony will suffer irreparable harm, and the goodwill that Mark Anthony has spent considerable time, effort, and resources cultivating will be eroded.”
While Bang Energy filed for trademark protection for MIXX hard seltzer in October of 2020, the trademark examiner issued an official office action just four days ago. In that letter dated April 22, 2021, the examiner stated the application would be refused due in part to a “liklihood of confusion” with several other brands, including “MYX” wine. Applicants are given six months to reply to office actions before a mark is abandoned.
Interestingly, Anheuser-Busch owns a registered mark for BudLight “MIXXTAILS,” in all caps, a now discontinued line of flavored beers. The cocktail-flavored beers received cool reception soon after its launch in 2015. The company offered versions in a Firewalker, a Hurricane, and like MXD, a Long Island Tea mix. The company’s advertising materials proclaimed, “IT’S THE MIXX THAT MAKES THE MOMENT.”
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