White Claw Hard Seltzer and Mike’s Hard Lemonade maker Mark Anthony Brands has filed a lawsuit against Vital Pharmaceuticals, Inc. and Bang Energy LLC alleging copyright infringement in U.S. District Court in the Southern District of New York.
In the lawsuit filed April 26, Mark Anthony argues that the defendants’ MIXX flavored malt beverages infringe on its MXD Cocktail Company flavored malt beverages and may cause consumer confusion.
According to the complaint, MIXX Hard Seltzer was released “in blatant disregard of Mark Anthony’s federally registered trademark rights” for its MXD Cocktail Co. flavored malt beverages.
“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 complaint reads.
Bang MIXX products (5% ABV) are available in Frosé Rosé, Purple Kiddles, Strawberry Blast and piña colada flavors. All four flavors are available in 12-packs of 12 oz. cans, and in a variety 12-pack. Each can contains 4 grams of electrolytes, according to the brand.
Meanwhile, Mark Anthony’s MXD products (12% ABV) are sold in 16 oz. cans with classic cocktail flavors, including Long Island iced tea, margarita, mai tai and strawberry daiquiri.
Mark Anthony filed for registration with the U.S. Patent and Trademark Office (USPTO) in July 2017 and recorded its first use in February 2018. The mark was registered on June 18, 2019. Since the brand’s 2018 launch, it has sold about 3 million case equivalents, Mark Anthony wrote.
MIXX hard seltzer launched in Delaware and North Carolina earlier this month, according to posts on the brand’s Instagram account.
Bang filed for USPTO registration on February 25, 2021, for the mark “Bang MIXX” in the wines and distilled alcoholic liquors classes in the U.S., and in the wine and spirits alcoholic beverages class internationally, which excludes beers.
Both companies’ marks fall under the same goods and services code, GS0331, which includes “alcoholic beverages, except beer; alcoholic beverages, namely, hard seltzer; alcoholic carbonated beverages, except beer; alcoholic energy drinks; hard seltzer; prepared alcoholic cocktail,” according to the USPTO.
“Unlike defendants, other companies that sell malt beverages marketed as flavored hard seltzer do so under names that are not confusingly similar to MXD, such as Barefoot, Smirnoff, Truly, Bon Viv, Vizzy, Arctic Chill, Mighty Swell, Fick’s, and Henry’s, among others,” Mark Anthony argued. “As the junior users, it was defendants’ obligation to select a name for their new hard seltzer malt beverage that is not confusingly similar to the registered trademarks for other malt beverages and sold in United States commerce.”
Mark Anthony is seeking a jury trial and that Bang “be temporarily, preliminarily, and then permanently enjoined and restrained manufacturing, distributing, shipping, offering for sale, or selling any flavored malt beverage or other alcoholic beverage, including but not limited to hard seltzer and cocktail-flavored alcoholic beverages, under the MXD or MIXX mark, or any trademark, trade name, or other name or designation, or any other marks, names or slogans that are confusingly similar to the MXD mark.”