Mountain Top Beverage Group, Inc. v. Wildlife Brewing N.B., Inc.

On July 19, 1993, B.L.S. of Sarasota (BLSS) filed an intent-to-use (ITU) trademark application with the United States Patent and Trademark Office (USPTO), seeking to register the mark “X 40 Wildcat” for beer and malt liquor. On August 28, 2000, BLSS filed a statement of use (SOU), a statement required of all ITU applicants following application allowance. The SOU comprised a photograph of a bottle with the mark affixed to it, together with a statement from Brady Skinner, BLSS’s president, attesting that BLSS first used the “X 40 Wildcat” mark at least as early as August 22, 2000, and that the mark was being used in interstate commerce. However, the SOU provided no details as to how the mark was used, nor did it claim there were any sales or interstate shipments of the goods. Nevertheless, on November 13, 2001, BLSS obtained a federal registration for its “X 40 Wildcat” mark. On December 3, 2001, BLSS assigned its mark to Mountain Top Beverage Group, Inc. (Mountain Top) (plaintiff). Two days later, Mountain Top commenced an action against Wildlife Brewing N.B., Inc., James Sorenson, and Pittsburgh Brewing Company (defendants) (collectively, Wildlife), asserting several claims, including Lanham Act claims against Wildlife for trademark infringement and false designation of origin regarding Wildlife’s “Wildcat” products. Wildlife counterclaimed for, among other things, cancellation of Mountain Top’s federal registration for “X 40 Wildcat.” During discovery, Wildlife adduced deposition testimony that the product depicted in the SOU was a dummy sample, meaning that the sample did not contain the actual brew to be sold. Wildlife also obtained discovery indicating that from the 1993 filing date of the ITU application through the commencement of the litigation, neither Mountain Top nor BLSS had made any sales of or conducted any marketing for products bearing “X 40 Wildcat”. Wildcat moved for a summary judgment seeking dismissal of Mountain Top’s Lanham Act claims.