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IP Law
Honorary Starter Arnold Palmer of the United States crosses the first tee during
the first round of the 2015 Masters Tournament at Augusta National Golf Club on
April 9, 2015 in Augusta, Georgia.
Photo by Ezra Shaw/Getty Images
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December 11, 2023, 11:01 AM GMT+1


LIQUID DEATH’S ‘ARMLESS PALMER’ STUNT EVOKES CLASH OF IP RIGHTS

By Kyle Jahner

Deep Dive
Kyle Jahner
IP Reporter


LAW FIRMS

 * Dorsey & Whitney
 * Wolf Greenfield

TOPICS

 * trademark ownership rights
 * trademark infringement
 * trademark dilution
 * fair use (trademarks)
 * trademark registration
 * right of publicity
 * burden of proof
 * generic marks

COMPANIES

 * Alphabet Inc
 * Kellogg Co

 * ‘Arnold Palmer’ may now be generic, unprotectable for drinks
 * Right of publicity adds unusual wrinkle to trademark question

Liquid Death’s name change of its “Armless Palmer” drink to “Dead Billionaire”
may keep the beverage company out of a courtroom, but it leaves unanswered novel
questions about the intersection of trademarks, right of publicity, and
genericide.

The company’s Nov. 25 post on Instagram announced the switch for its iced tea
and lemonade combination to a name “that won’t require us to fight a senseless
legal battle.” That implied that Arnold Palmer Enterprises Inc., founded by the
late legendary golfer and owner of Arnold Palmer trademarks, had objected to
Liquid Death’s branding.

The label change to “Dead Billionaire” could help Liquid Death evade trademark
or right of publicity litigation. But it leaves unresolved questions that would
have been raised by an effort to legally enforce rights to “Arnold Palmer,” a
name that has become the popular moniker for beverages that mix iced tea and
lemonade.

Terms that simply name a product are generic and can’t be registered or enforced
as trademarks, but the boundary can be nebulous. And there’s little-to-no
precedent for names that become generic terms for products, much less those
related to a claim over right of publicity—control over commercial use of one’s
name or likeness.

“This would be a pretty tough case,” said trademark attorney Catherine M.C.
Farrelly of Frankfurt Kurnit Klein & Selz PC. “If your name is the generic word
for a product—I don’t think there’s a clear answer how this would go.”

Starting in the 1960s, at the height of the golfer’s popularity, use of Arnold
Palmer’s name to identify his preferred beverage spread rapidly. His company
first licensed a retail drink in 2001, and since 2002 Arizona Beverage Co. has
been an exclusive distributor. Palmer, who died in 2016, favored a tea-heavy
mix, but the drink is now often a 50-50 mix when sold in restaurants or as a
licensed retail beverage.

Determining whether trademark law would treat “Arnold Palmer” as a brand or
drink description is more art than science, attorneys said. A court has to
somehow “quantify” the “level of misuse” of a purported brand to determine its
primary function, according to trademark attorney Danny M. Awdeh of Finnegan
Henderson Farabow Garrett & Dunner LLP.

“I don’t think you’re going to find black and white answers,” Awdeh said.


LIQUID DEATH OF BRAND

Supplying Demand Inc., the corporate name of the beverage company founded in
2019, sells water and tea in cans branded with skulls using the tagline “Murder
Your Thirst.” Other Liquid Death tea flavors include “Grim Leafer,” “Rest in
Peach,” and “Slaughter Berry.”

A core question about an “Armless Palmer” brand—or “Arnold Palmer” itself—is
whether the name has joined astro-turf, trampoline, and jacuzzi as a genericide
victim. The US Supreme Court’s 1938 opinion in Kellogg Co. v. National Biscuit
Co.—which found “shredded wheat” generic—said a brand owner must show a term’s
“primary significance” to the public is “not the product, but the producer.”

“Arnold Palmer” often functions as a generic reference for iced tea and
lemonade, since consumers ordering it at a bar or restaurant are unlikely to
think it comes from a particular source, multiple attorneys said. But they
differed over the likelihood of whether it still qualifies as protectable.

Once a term becomes generic, “the cat’s out of the bag, and no one can claim
exclusive rights,” Farrelly said. Liquid Death would have a “credible argument”
that it’s free to use “Arnold Palmer"—or variants—to describe its drink flavor
the way bartenders informally do, she said.

But the boundary is “a fuzzy line,” intellectual property attorney John L.
Strand of Wolf Greenfield & Sacks PC said. It depends on how the term is used,
he said, and how consumers perceive it.

“I’d be interested to see what surveys say about how many people know ‘Arnold
Palmer’ is a source identifier,” Strand said. “How many times do people walk
into bars or golf clubs and order an Arnold Palmer, and think they’re getting an
Arizona iced tea and lemonade?”

Arnold Palmer’s company would “probably have a tough time enforcing” its
trademark rights regarding that drink, IP attorney Bruce R. Ewing of Dorsey &
Whitney LLP said. Surveys never indicate 100% of people identify a term as a
brand, he added, and courts differ over what constitutes a “sufficient number.”

“If the term is held generic, then it’s available for a particular product or
service, and anybody can use it in that way,” Ewing said. “And there’s nothing a
prior brand owner can do about it.”

Liquid Death and an attorney who represents Arnold Palmer Enterprises didn’t
respond to requests for comment.


DIFFERENT FROM LINOLEUM

The golfer’s name being used to identify a drink “doesn’t necessarily make it
generic,” trademark attorney Julia Anne Matheson of Potomac Law Group said.
“Arnold Palmer” is the name of a person who endorses products, not a term of
art, and the name “hasn’t lost its source identification capacity,” she said.

“Arnold Palmer” also differs from other brands that fell victim to genericide,
including those that pioneered products like dry ice, jet skis, escalators, and
hovercrafts, she said.

“Ultimately, the question is, does it continue to have the ability to identify a
specific source?” Matheson said. “There’s a difference, because in the case of
trampoline or linoleum or whatever, those were new products brought to the
market. There was no common way to refer to them.”

“Courts don’t like to take away property rights,” so the bar for genericism is
high, Matheson said, and dual use means a term can still indicate its source.
She noted a 2017 Ninth Circuit finding in Elliott v. Google, which held that
“Google” satisfied the primary significance test. The decision also said public
use of Google as a verb meaning “to search the internet” doesn’t necessarily
indicate a generic term for a noun—a search engine.

Enforcement of an “Arnold Palmer” trademark could also take the form of a
dilution-by-tarnishment claim if the trademark—not just the person—is “famous”
under federal law. Tarnishment claims bar use that creates an association
harming the reputation of a trademark, even if the use is not confusing or in
the brand-owner’s industry. The association of Palmer’s name with the “Armless”
play on words that could be seen as crass would be a “classic” example, Ewing
said.

But that claim presumes there’s a trademark right to begin with—and generic
terms can’t be trademarks.


WHAT’S IN A NAME?

Even if “Arnold Palmer” were to be found a generic as a trademark term, it’s
also still a famous name and could invoke a right of publicity claim.

Federal law doesn’t include such a right, though the Lanham Act does ban falsely
suggesting association with an individual, and courts have found that includes
deceased persons. Such claims rest on deception, though, and if consumers
perceive a term as generic, they’re not deceived.

Right of publicity laws vary by state but generally don’t require confusion—just
commercial use of one’s name, image, or likeness to sell a product. If Arnold
Palmer’s company wanted to block use of the name by drink-makers like Liquid
Death, “right of publicity is probably the better way to go,” Ewing said.

“Right of publicity is more interesting. In some respects it’s easier to
enforce,” Ewing said. “The recipient of a letter would probably have a tough
time.”

Right of publicity laws and case law largely incorporate fair use exceptions,
though states use different standards. Naming a generic product would qualify as
fair use, putting Arnold Palmer “in the public domain,” Awdeh said.

“Where ‘Arnold Palmer’ has been used to identify a category of drink at least as
long as I’ve been alive, it’s hard to imagine you can put that genie back in the
bottle using right of publicity,” Awdeh said.

Farrelly agreed it’s likely to be found fair use. But she said she understood
why Liquid Death backed off, and also appreciated the approach to changing the
drink’s name. Supplying Demand applied to register a “Dead Billionaire”
trademark in June, months before posting about the legal threat and name change
on social media.

Some attorneys said they saw as insulting both the use of the “Armless” word
play and the switch to the more opaque and morbid “Dead Billionaire"—Palmer’s
estate was worth about $875 million, according to Golf Digest. But others said
that reaction may not bother an edgy company branded as “Liquid Death.”

“The way they responded was clever and smart for their business,” Awdeh said.

Continue Reading

To contact the reporter on this story: Kyle Jahner in Washington at
kjahner@bloomberglaw.com

To contact the editors responsible for this story: James Arkin at
jarkin@bloombergindustry.com; Tonia Moore at tmoore@bloombergindustry.com


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