Future Proof Files Injunction Against Molson Coors

Dear Client:

Recently we reported that BeatBox maker, Future Proof, had sent a cease and desist letter in January to Molson Coors Beverage Company for what the former dubbed infringement against its seltzer brand, Brizzy. As BBD readers know, MCBC is bringing a similarly named hard seltzer brand, Vizzy, to market imminently. 

Molson Coors Beverage Company had expressed its intent to respond by Friday, February 7. But Thursday afternoon, Future Proof filed an injunction, CEO Justin Fenchel told BBD. 

But then, a press release hit on Friday, confirming that Future Proof filed litigation in an Austin federal court, “charging that Molson Coors … is infringing on Brizzy’s federally registered trademark and creating market confusion through the industry giant’s planned launch of a competing product, Vizzy, later this year.” 

Indeed, Future Proof is publicizing the suit in efforts to mobilize consumer support. Last week the company and its founders tweeted about the ordeal, citing our original coverage [see BBD 01-30-2020] of the alleged infringement. 

“What do you do when a multi-billion dollar company rips off your startup?” the post asked, urging people to repost “in support of entrepreneurs everywhere.”  

MCBC RESPONDS. MCBC sent a statement to BBD in response to the filed litigation. 

“We are aware of the complaint Future Proof filed yesterday,” it said. “The facts are the USPTO published the Vizzy trademark application after reviewing the registered trademarks, including the ones owned by Future Proof.  Plus, Vizzy’s packaging is markedly different and offers unique ingredients. We don’t believe consumers will be confused. Distributors and retailers alike are thrilled about getting Vizzy on shelves this spring, as we all believe that the brand has strong potential to be a meaningful player in the hard seltzer segment.”

“MARKET REACTION TO BRIZZY EXCEEDED EXPECTATIONS.” Back to Future Proof: “The positive market reaction to Brizzy has exceeded our expectations,” Justin said in the release. 

Recall, Justin told BBD last week that their hard seltzer brand, which hit distribution in October, ended the year with 4,000 case depletions. “HEB is selling very well, with increasing velocities,” he told BBD. 

But Friday’s announcement implies a significant acceleration in sales this year: “Brizzy is currently sold at more than 1,000 retail locations in Texas, Kansas, Virginia, California and North Carolina,” it said. “Future Proof has sold more than 10,000 cases since September, and projects Brizzy sales to exceed $2.5 million in 2020, with plans to continue expanding distribution.

“…Unfortunately, several wholesalers and retailers are already expressing concerns about likely consumer confusion with Vizzy. The names are nearly identical, they sound alike, the product is similar, the packaging is similar, and we are often distributed by the same wholesalers.”

We’d be shocked if MCBC just rolled over and changed the name. Stay tuned. 

BW166: 400,000 BEV ALC ITEMS AVAILABLE IN THE US

The biggest challenge for beer, wine and spirits producers is increasing/ maintaining market share, according to BW166 founder and Gomberg, Fredrikson & Associates editor, Jon Moramarco. (Jon is a bev alc industry vet, having led various divisions of Constellation in the early aughts, mostly outside the U.S.) 

Beer has been losing share to wine and spirits for years, and now wine growth is slowing down. Spirits “is the category that is truly growing and taking share, primarily from beer at this point,” Jon said during a recent webinar. 

This article ran recently in our sister publication, Wine & Spirits Daily, but with wine growth finally slowing after a couple of decades, it definitely offers some lessons for beer. 

What may be most interesting to the beer crowd, in fact, is this particular read on where seltzer is sourcing its share. 

SELTZER TAKING SHARE. While beer has been losing share, hard seltzers have been taking it. Take White Claw, for example. About half of White Claw’s growth is coming from wine and spirits, or about 24 million cases, according to estimates, skewing slightly more towards wine. 

Breaking that down, that’s 13 million cases of White Claw from wine, which equates to about 5 million cases of wine or about 1.2% wine market growth; and 11 million cases of White Claw from spirits which equates to 1.3 million cases or 0.5% of spirits market growth, according to Jon.

WINE DOING SLIGHTLY BETTER THAN ESTIMATED. Looking at a more industry holistic tally, in 2019, beer volumes were down 1.1%, wine volumes were up 1.1% and spirits volumes grew 5%, per BW166 data. 

A HIGHLY FRAGMENTED MARKET. Regardless of shades of growth, the point remains, for all bev alc: It’s tough to compete in a very fragmented industry. For context, in 2019, the TTB approved more than 180,000 labels across beer, wine and spirits. But not all beer labels need to be approved by the TTB, according to Jon. 

Overall, Jon estimates there could be around 400,000 bev alc items available in the US. 

Wine consistently has more new labels introduced each year compared to beer and spirits. That’s partially because for many wines each new vintage requires a new label. 

Until tomorrow,

Harry, Jenn and Jordan

“Accept what people offer. Drink their milkshakes. Take their love.”

– Wally Lamb

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YTD sell days Over/Under:  0

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