A huge-ass trademark case

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Literally. Kate Bernot, "Please let New Orleans' "Huge Ass Beer" lawsuit reach the Supreme Court", The Takeout 3/1/2019:

Per The New Orleans Advocate, the trademark for Huge Ass Beers belongs to one Nicholas S. Karno #1 Inc., which operates multiple Bourbon Street bars. Said bars—the Steak Pit, Prohibition, and Cornet—offer oversized and novelty pours of beer in branded Huge Ass Beer mugs. […]

But Huge Ass Beer bars' operator Billie Karno this week filed a lawsuit alleging that other Bourbon Street bars have violated his Huge Ass Beer trademark by selling to-go cups advertising "Giant Ass Beer." Those bars—Beerfest, Voodoo Vibe, and Sing Sing—plus a strip club called Stiletto's, are operated by Pamela Olano and Guy Olano Jr. Karno seeks an end to marketing materials bearing the name Giant Ass Beers as well as damages.

We can hope that the filings and arguments in this case will provide some new answers to Ben Zimmer's question "Can '[adjective]-ass' occur predicatively?"  After all, this is an area where Brett Kavanaugh has documented expertise.

Meanwhile, some of the other coverage:

Cecilia Von Mann, "Huge Ass Beers vs. Giant Ass Beer", Adams IP 3/14/2019
Bruce Mikells, "Huge and Giant — These Words are Causing a Beer Battle in NOLA", 97.3 3/2/2019
"S2:Ep7 Huge Ass Beer Has A Giant Trademark Problem", The Legal Tea 3/2/2019
"Bourbon Street battle: Jumbo beer seller sues over trademark", AP 3/1/2019

A search for "huge ass beer" on Pacer turned up nothing —

Maybe some more legally informed readers can find the filing(s) so far?



13 Comments

  1. Chan S. said,

    March 30, 2019 @ 10:50 am

    The case is Nicholas S. Karno No. 1, Inc. v. Silver Bourbon, Inc. (2:19-cv-01745), filed in the Eastern District of Louisiana on 2/26/2019. I've contributed the complaint to RECAP/Court Listener here: https://www.courtlistener.com/docket/14722761/nicholas-s-karno-no-1-inc-v-silver-bourbon-inc/

  2. Don Monroe said,

    March 30, 2019 @ 11:17 am

    There is also a company called Big Ass Fans, which enhances its edginess because it can be interpreted as "fans of big asses" or (since there is no hyphen) "big fans of asses." To complicate matters, they have a picture of a donkey on their logo, which makes no sense at all.

  3. J.W. Brewer said,

    March 30, 2019 @ 11:51 am

    A quick scan of the complaint suggests that while the plaintiff claims to have a federally-registered trademark for HUGE ASS BEERS it asserts common-law trademark rights in BIG ASS BEERS but does not claim to have a federal registration for that alleged mark. My initial reaction is that HUGE ASS ought to be protectable only if, at a minimum, a near-synonym like BIG ASS is considered unprotectable and thus fully usable by competitors as a generic descriptor of the big-assedness of their products.

  4. Rebecca said,

    March 30, 2019 @ 12:09 pm

    Definitely a case for the grown-ass justices of the Supreme Court.

  5. Berna said,

    March 30, 2019 @ 3:49 pm

    Relevant XKCD: https://xkcd.com/37/

  6. AntC said,

    March 30, 2019 @ 5:40 pm

    Relevant XKCD

    Or latest XKCD. 'In the pocket of big ass-beer'.

    [(myl) It's real — from the current Google News index:
    "Hop Take: Big Beer's Latest Target Is Health-Conscious, Self-Conscious Women"
    "Deschutes Is a Model for How Craft Brews Can Fight Back Against 'Big Beer'"


    ]

  7. Bob Ladd said,

    March 31, 2019 @ 2:00 am

    @Dan Monroe –
    Are you serious that the donkey on the logo of Big Ass Fans "makes no sense at all"?

  8. chris said,

    March 31, 2019 @ 2:42 pm

    So "Big Ass Fans" doesn't make air-moving devices which are unusually large?

    As for the lawsuit, I think it's pretty clear that a giant-ass beer and a huge-ass beer are similar products, but not the same; a reasonable person aware of how trademarks work would assume it was a competitor/imitator, IMO. I expect this line of argument will occur to the defendant's lawyers.

    Presumably "huge beer" is too straightforwardly descriptive to exert a trademark over, so there may be some question about whether intensifying "-ass" is just a word in a way that would make it also descriptive.

    AFAIK if he called it something more distinctive like "Nick's Huge Ass Beer" then anyone else could sell another huge ass beer as long as they didn't claim it was Nick's. Trademark law isn't intended to prevent similar products from *existing*, only from being passed off as the real thing. But maybe he didn't like the potential misreading of that as a beer named after Nick's huge ass.

  9. maidhc said,

    March 31, 2019 @ 3:54 pm

    In trademark cases the question is usually "Would a reasonable consumer confuse one trademark with the other?" So you head out with the intention of buying a Huge Ass Beer but by mistake you buy a Giant Ass Beer because you thought it was the same.

    This particular case I think is marginal; one could argue either side.

    Another example is In'N'Out Burger, which operates mostly in California. However they have a trademark in Australia. Under Australian law you have to use the trademark to enforce it, so from time to time In'N'Out opens a popup on the streets of Sydney or Melbourne and sells 500 hamburgers to keep their trademark active. Another company started up in Australia under the name Down'N'Out Burger. In'N'Out was able to win a court case against them.

    Burger King operates in Australia under the name Hungry Jack's because the name Burger King was already trademarked. (For a different result, see the case of Burger King of Moline, Illinois.)

  10. maidhc said,

    April 1, 2019 @ 2:10 am

    Correction: Not Moline, Illinois but Mattoon, Illinois.

    Summary of the case: a burger joint in Mattoon registered an Illinois state trademark for the name Burger King. Many years later, Burger King the giant chain began to open in Illinois. Burger King of Mattoon took them to court and I believe it went up to the Illinois Supreme Court.

    The court decision was based on the fact that in all the years that Burger King of Mattoon had owned the trademark, they had never opened another location besides the original one. Therefore they retained exclusive rights to the name Burger King within a five mile radius of Mattoon. The rest of the state was opened up to Burger King the giant chain.

  11. maidhc said,

    April 1, 2019 @ 2:18 am

    Sorry, a few more minor corrections.

    It was the federal 7th Circuit Court of Appeals and it was a 20 mile radius.

    More info:
    https://en.wikipedia.org/wiki/Burger_King_(Mattoon,_Illinois)

  12. Andrew Usher said,

    April 2, 2019 @ 6:57 pm

    Well, if "Nick's Huge Ass Beers" would be protectable only because of the "Nick's", it follows that "Huge Ass Beers" on its own should not be. And indeed, I think it's taking trademark law too far if we allow a sequence of ordinary English words (not proper names), in their ordinary meaning, to be protectef – it is merely descriptive (at best).

    I'd also say that I would always hyphen 'X-ass' adjectives; it is a trend not to? Or just something done for commercial purposes?

    k_over_hbarc at yahoo.com

  13. BobW said,

    April 3, 2019 @ 7:47 am

    I used to work somewhere I periodically calibrated electronic measuring equipment. A large precision reference one ohm high wattage wire wound resistor was kept in a drawer marked "BAR." Big Ass Resistor, of course.

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