Monday, June 8, 2015

Buttwiper v. Budweiser

by Steve Reiss of

Defendant is the owner and operator of VIP, which creates, manufactures, and sells high quality, durable dog toys. VIP sells three brands of dog toys: "Tuffy," "Mighty," and "Silly Squeakers." "Buttwiper" is with the "Silly Squeakers" brand. VIP's dog toys are high-end and cost more than most, if not all, other dog squeeze toys on the market. "Silly Squeakers's" first squeeze toy was a two-headed object called "Mr. Poop." "Buttwiper" and "Cataroma" -- packaged with "Buttwiper" -- were created to augment "Mr. Poop."

The idea for "Buttwiper" came from a Stanley Steamer commercial in which a dog scoots across the floor while rubbing its bottom on the carpet. The reaction of the mother to the dog's actions suggests that the carpet will now need to be cleaned. This scooting action is depicted on the label of the "Buttwiper" squeeze toy. Mr. Sacra directed a graphic designer to "make a knock-off of a beer bottle label" for "Budweiser"/"Buttwiper."

The Court finds that all four factors weigh in favor of granting Plaintiff's motion for preliminary injunction on its claims for trademark infringement and unfair competition.

There is testimony that the dog on the "Buttwiper" toy is suffering from some unsavory condition affecting its anal glands. There is also an opinion by an employee of Plaintiff that the line following the dog drawing is a feces mark. There is, however, no evidence that "Buttwiper" has harmed the reputation of "Budweiser." The dilution by tarnishment claim will not support a preliminary injunction under federal law.

Anheuser-Busch, Inc. v. VIP Prods., LLC, 666 F. Supp. 2d 974, 980 (E.D. Mo. 2008).

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