Anheuser-Busch, Inc. v. Balducci Publications

28 F.3d 769 (8th Cir. 1994)

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Nature of the Case

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Facts

P operates a brewery that includes the Michelob family of beers. P owns several federally-registered trademarks: (1) Michelob; (2) Michelob Dry; (3) A & Eagle Design; (4) Bottle and Label Configuration; (5) Bottle Configuration; (6) Vertical Stripe Design; (7) the phrase 'ONE TASTE AND YOU'LL DRINK IT DRY;' and (8) Vertical Stripe and A & Eagle Design. D publishes Snicker, a humor magazine. An issue published in April 1989, contains a mock advertisement for the fictitious product 'Michelob Oily (R).' The graphics include a partially-obscured can of Michelob Dry pouring oil onto a fish, an oil-soaked rendition of the A & Eagle design (with the eagle exclaiming 'Yuck!') below a Shell Oil symbol, and various 'Michelob Oily' products bearing a striking resemblance to P's Michelob family. D admitted to the use of actual P 'clip-art' in replicating several of the protected trademarks. In smaller text, the ad opines, 'At the rate it's being dumped into our oceans, lakes, and rivers, you'll drink it oily sooner or later, anyway.' A disclaimer is found in extremely small text running vertically along the right side of the page: 'Snicker Magazine Editorial by Rich Balducci. Art by Eugene Ruble. Thank goodness someone still cares about quality (of life).' P sued D. It asserted five causes of action: (1) infringement of federally-registered trademarks, 15 U.S.C. § 1114(1); (2) federal unfair competition, 15 U.S.C. § 1125(a); (3) state trademark infringement, Mo. Rev. Stat. § 417.056; (4) common law unfair competition; and (5) state law trademark dilution, Mo. Rev. Stat. § 417.061. It sought one dollar in nominal damages and injunctive relief. D stated at trial that he used the parody to comment on: (1) the effects of environmental pollution, including a specific reference to the then-recent Shell oil spill in the Gasconade River--a source of P's water supply; (2) P's subsequent decision to temporarily close its St. Louis brewery; and (3) the proliferation of P beer brands and advertisements. P offered a study designed by Jacob Jacoby, Ph.D., and conducted under the supervision of Leon B. Kaplan, Ph.D. The surveyors showed the Balducci ad to 200 participants and a Michelob Dry ad to the remaining 101. Of those viewing the Balducci ad, many expressed an impression of P's role in its creation. Almost half found nothing about the parody which suggested it was an editorial, and seventy-five percent did not perceive it as satirical. Virtually none (3.5%) noticed the tiny disclaimer on the side of the ad. Twenty-two percent stated they were less likely to buy Michelob beer in the future. The district court ruled in favor of D. It held that D's use of [the] marks did not create a likelihood of confusion in the marketplace. The court expressed the need to give 'special sensitivity' to the First Amendment aspects of the case. P appealed.