Olympia Beer was originally brewed in Tumwater, Washington -- which borders Olympia, Washington. In 1999, Pabst Brewing Company acquired the brand, and then shut down the Olympia-based brewery in 2003. Olympia beer was then no longer brewed near Olympia, but instead was brewed in various locations around the United States.
The can of Olympia Beer promotes the product as, "The Original Olympia Beer." The can also includes the slogan, "It's the Water," along with a picture of a cascading waterfall, both of which -- at least according to the plaintiff in a lawsuit against Pabst -- are references to the site of the original brewery.
In a class action lawsuit brought in federal court in California, the plaintiff alleged that the reference to "The Original Olympia Beer," along with the "It's the Water" slogan and the picture of the waterfall, misled consumers into believing that Olympia beer was, in fact, brewed with water from the Olympia area.
Several years ago, the court denied Pabst's motion to dismiss, holding that, "It is plausible that a reasonable consumer could see the phrase 'The Original Olympia Beer" and the waterfall image on the can and associate Olympia Beer with the Olympia area of Washington, especially in light of Plaintiff's allegation that the waterfall image 'looks just like the waterfalls' associated with the original brewery in the Olympia area of Washington State." The court further explained that, "a reasonable consumer could construe the phrase 'It's the Water' -- when taken with the can's labeling as a whole -- to suggest that Olympia Beer is brewed using water from the Olympia area."
At the conclusion of discovery, Pabst moved for summary judgment, arguing that the plaintiff had failed to present evidence that reasonable consumers would be misled by the product's labeling, and the court granted the motion. Here's why.
In order to establish a claim, the plaintiff must demonstrate that “members of the public are likely to be deceived." The plaintiff is required to produce evidence that shows “a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.” This can be done through presenting surveys and expert testimony and, potentially, anecdotal evidence. On the other hand, “a few isolated examples of actual deception” is not sufficient to prove a claim.
Here, the court found that the plaintiff hadn't really presented any meaningful evidence of consumer deception – other than the plaintiff's own allegations that he was misled. The court explained, “Plaintiff's testimony cannot meet the reasonable consumer standard on its own as it only represents an isolated example of a consumer being deceived.” On the other hand, Pabst presented survey evidence showing that reasonable consumers would not, in fact, be deceived. Essentially, those surveys showed that the source of the water wasn't a relevant consideration to consumers when deciding whether to purchase the beer.
One of the things that is so interesting about this case is that the court started out being very receptive to the plaintiff's claims. But, ultimately, the court granted the advertiser summary judgment after the plaintiff failed to put the work in to (at least try to) demonstrate that consumers were likely to be misled.
Peacock v. Pabst Brewing Company, No. 2:18-cv-00568 DJC CKD (E.D. Cal. March 15, 2024).
