Whisky Dispute Poses an Interesting Question About Comparative Advertising Limits

Just how far can you go in a commercial pitting your product against a competitor’s?  We may be set to find out soon.

Yesterday a federal judge entered a scheduling order setting an introductory timeline in a comparative advertising case between the makers of Crown Royal and Texas Crown Club whiskies.

The dispute arises over a commercial promoting Texas Crown Club where a cowboy walks into a bar (stop me if you’ve heard this one before) and gets insulted for apparently trying to quench his hankering for a whisky with something in the little purple bag Crown Royal uses to market itself.  Along with a camera-shot of the purple bag in the hand of the cowboy, a lady at the bar is heard to remark “We don’t drink that poison in this neck of the woods.”

In true cliché fashion, the cowboy is tossed from the bar followed by footage of the Texas Crown Club bottle next to a bag resembling the current Texas flag.

Upset with the commercial and the implication about “poison”, Crown Royal’s maker, Diageo, filed this complaint against Mexcor, Inc., the maker of Texas Crown.  While a portion of the complaint deals with trademark dilution, the central allegation relative to the advertising question comes under the guise of claiming that the statement about “poison” was meant to have at least some literal import:

By characterizing CROWN ROYAL whisky as “poison,” Defendant is falsely and misleadingly advertising, through literal statements and by necessary implication, that CROWN ROYAL whisky is a harmful, unsafe, and substandard product, that CROWN ROYAL whisky is inferior to TEXAS CROWN CLUB whisky, that CROWN ROYAL whisky is an inappropriate drink for Texans, or simply that CROWN ROYAL whisky tastes bad. Such advertising violates 15 U.S.C. § 1125(a).

We’d love to show you the commercials to let you decide what you think about all this, but the links to the commercial in the complaint that were previously available on Youtube have been taken down.  We will keep you posted on the developments here as they may end up having broad-reaching implications for comparative advertising.