Fitger's granted injunction in dispute over beer marketing
Mark Stodghill
Duluth News Tribune - 12/20/2007

Fitger’s On-the-Lake’s request for a preliminary injunction halting a Connecticut company from using the Fitger name or any of its trademarks in the sale and marketing of beer.

Fitger’s On-the-Lake on Nov. 21 brought a trademark infringement and false advertising action against defendants Douglas Donnelly, The Fitger Co. of Connecticut, United States Fire-Arms Manufacturing and Michaud Distributing.

The suit alleged that Donnelly personally directed the other defendants to deceive consumers as to the origin of the products they sold — under the Fitger label — and deprived Fitger’s of its rights to its distinctive and well-known trademarks. Donnelly’s beer was sold and distributed in the Twin Ports by Michaud Distributing.

A hearing was held before U.S. District Judge Michael Davis in Minneapolis on Tuesday and he issued the temporary injunction on Wednesday.

“Fitger’s has suffered irreparable injury as a result of defendants’ unlawful actions and will continue to suffer irreparable injury if defendants’ trademark infringement and literally false statements are allowed to continue,’’ Davis wrote in his ruling.

The Connecticut Fitger’s Web address, www.fitger.com, is similar to the Duluth brewery’s Web site, www.fitgers.com. On the Connecticut site, Donnelly is identified as the great grandson of August Fitger of Duluth, who founded A. Fitger and Co./Lake Superior Brewery in the 1880s. The site promotes the 125th anniversary of Fitger’s beer and lists Michaud Distributing, Duluth and Superior, as distributors of the beer.

Davis ordered that the defendants refrain from using any of Fitger’s trademarks, logos, domain name, Web site or Web page or anything that would cause confusion with Fitger’s On-the-Lake products.

The defendants are ordered to immediately recall all of the beer, promotional materials, packages, labels, cartons, art work and any material that would infringe, dilute or cause confusion with Fitger’s marks.

Felicia Boyd of the Faegre and Benson law firm in Minneapolis represented Fitger’s On-the-Lake. “Fitger’s takes its trademark rights very seriously and will aggressively enforce those rights in order to protect the public and the business,’’ she said in a phone interview Wednesday night. Boyd preferred to let her client, Scott Vesterstein, executive vice president of Fitger’s On-the-Lake, comment. “He’s ecstatic,’’ she said.

Vesterstein said he was very happy with the court ruling. “They have intentionally tried to confuse the consumer as to the source of their bottled beer by using identical copies of all Fitger’s marks on the product and the product packaging,’’ Vesterstein said. “We own those marks. So we won the case and we’re very, very happy to have done this. ’’

The preliminary injunction doesn’t necessarily end the case but it signals that the judge has decided that the conduct is harming the plaintiff and the public, pending further consideration of the issue at trial, if it goes that far.

The defendants could appeal. Edward Schwartz, of the Christie, Parker and Hale law firm in Pasadena, Calif., was the lead attorney for the defendants. A secretary in his office said he was out of town and unavailable for comment Wednesday.

A message left for Donnelly at his United States Fire-Arms Manufacturing office in Hartford, Conn., wasn’t returned.

MARK STODGHILL covers public safety and courts. He can be reached weekdays at (218) 723-5333 or by e-mail at mstodghill@duluthnews.com.

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