Distilleries in legal dispute over the use of ‘breakfast’

Two US distilleries are embroiled in a legal dispute over the use of the term ‘breakfast’ on their bottles, following the release of a new ‘breakfast rye’ whiskey finished in maple syrup barrels.

Few Spirits’ Breakfast Gin.

Illinois-based distiller Few Spirits has filed a lawsuit against Gray Skies Distillery, located in Missouri, after Gray Skies released a new breakfast rye whiskey.

Few Spirits produces a ‘Breakfast Gin,’ flavoured with Earl Grey tea, which it launched into the market in 2011. It subsequently trademarked the name in January 2016.

The distiller has accused Gray Skies of trademark infringement, unfair competition and violation of Michigan consumer protection laws for its use of the name “Breakfast Rye”.

In the complaint, which was filed on 21 November, Few Spirits said its legal team contacted Gray Skies in October, having been made aware of the new product release.

Gray Skies’ attorneys then sent a letter to Few Spirits at the beginning of November stating that it was “in the process of launching distribution” for its Breakfast Rye and that Few Spirits “should consider the matter closed”.

Few Spirits argues that the name of Gray Skies’ new whiskey would imply that it is “somehow authorised by, sponsored by or affiliated with [Few Spirits] and its well-known Breakfast Gin mark”.

The lawsuit also stated that Gray Skies had “deliberately and wilfully used the Breakfast Rye mark to trade upon Few’s widespread and hard-earned goodwill in its Breakfast Gin distilled spirits, as well as to confuse consumers as to the origin and sponsorship of (Gray Skies’) distilled spirits”.

Few Spirits is seeking an injunction to prevent the sale Gray Skies’ whiskey under the name “Breakfast Rye”, together with damages if the spirit is ever served at a bar or sold in shops.

Gray Skies’ attorney, Thomas Williams, who has not yet filed a response to the accusation, told local media that it is unlikely that consumers would confuse the two products.

Speaking to MiBiz, he said: “The whole concept of trademark law is to protect consumers from confusion so that they don’t buy one product thinking it’s from one source and it’s actually from somewhere else. When we look at this case, we don’t see that there’s a likelihood of confusion. When you look at the bottles, they’re totally different. When you look at the labels, they’re totally different”.

“These are craft liquors. I’m pretty sure the consumers are discriminating and they’re not going to get mixed up if you hand them a glass of gin and they asked for a glass of whiskey”.

He added: “I think we would vigorously dispute that anybody’s going to be confused when you put the two products side by side in the market”.

Breakfast Rye, which is due to go on sale on 3 December, got its name after someone commented that ‘it smells like breakfast’ while trying a sample.

The case is based on whether the term ‘breakfast’, which is often used to indicate flavourings, as well as the time of day, can be trademarked in this way. Few Spirits has also stated that the new whiskey may be confused with one of its products and thus risks damaging its reputation. Gray Skies Distillery currently sells all of its products within the state of Michigan while Few Spirits distributes its products in a number of states, but not in Michigan.

This is not the first time that the use of the word ‘breakfast’ has caused controversy in drinks.

In 2013, Black Isle brewery in Scotland was criticised for its “Cold Turkey Breakfast Beer” after campaigners were concerned that it would encourage alcoholism.

Speaking to the drinks business at the time, founder David Gladwin, said: “It’s actually designed for healthier drinking. It was bought out as a post-Christmas beer – an antidote to the 8.4% imperial stout we bought out before.

“Unfortunately, if you mention breakfast and beer in the same sentence people do jump to rather predictable conclusions. But there has been a lot of positive reaction to it as well. It’s worth remembering that one man’s breakfast is another man’s lunch. Some people who have been up for four or five hours prior to 9 o’clock in the morning might have a drink as it’s their lunch.”

Brewers including Dogfish Head, Founders Brewing and Mikkeller have all produced a beer with the word ‘breakfast’ in the title while Ely Gin produces a gin flavoured with “breakfast marmalade”.