"imported" Sapporo isn't confusing as a matter of law given clear disclosure of Canadian origin

Bowring v. Sapporo U.S.A., Inc., 2017 WL 902151, --- F.Supp.3d ----, No. 16-CV-1858 (E.D.N.Y. Feb. 10, 2017)

Bowring sued Sapporo under the GBL and similar state law claims, alleging that it created a misleading impression that Sapporo beer is a Japanese import, when in fact, it is produced in the United States and Canada. While Sapporo beer was originally brewed in Japan in 1877, all Sapporo now sold in the United States is brewed in La Cross, Wisconsin, or Guelph, Ontario, Canada.  Bowring pointed to Sapporo’s TV ad with imagery of a “Japanese landscape being traveled into American landscape,” ending with the slogan “The Original Japanese Beer;” its slogans “Sapporo – the Original Japanese Beer” and “Japan’s Oldest Brand;” and an image of the North Star, a “symbol of pioneers in the area of Sapporo” on labels. Canada-produced beers also include the word “Imported” on the front label.

Each imported can or bottle also adds: “Imported by Sapporo U.S.A. Inc., New York, NY” followed by “Brewed and canned [or bottled] by Sapporo Brewing Company, Guelph, Ontario, Canada” in darker contrasting font on the front label for bottles and on the side or back of cans. The labels for beers brewed in Wisconsin don’t use the word “Imported,” and include the following statement on the front, back, or side of the container: “Brewed and Bottled [or Canned] by Sapporo Brewing Company, La Cross, WI for Sapporo U.S.A., New York NY” in visible, contrasting print.  Bowring alleged that independent stores and restaurants display Sapporo in the “imported beer section” and on “imported beer lists.” The complaint showed several menus listing the beer as, for example, “Sapporo Japanese Rice Lager 5%,” and “Sapporo (Japan).”  Surdyk’s Liquor and Cheese Shop in Minneapolis, Minnesota used the text: “Sapporo Draft 6pk bottles from Japan.”

Usually, whether a reasonable consumer would be confused is a factual question unsuitable for the motion to dismiss stage. Here, however, the court found the claims not misleading as a matter of law.  “In evaluating the efficacy of .. a disclaimer, courts consider factors such as the font size, placement, and emphasis. Courts routinely conclude that the presence of a disclaimer, considered in context, precludes the finding that a reasonable consumer would be deceived by the defendant’s conduct.”  As applied to this case, “Sapporo accurately and clearly discloses the product origin in either Wisconsin, USA or Ontario, Canada on its labels; those products labeled ‘Imported’ are in fact imported from Canada; use of alleged Japanese imagery and the trademarked North Star symbol are not misrepresentations, but a tribute to the history and heritage of the company; and Sapporo labels do not include the word ‘Japan.’”

Ackerman v. Coca-Cola Co., No. 09 CV 395 DLI RML, 2013 WL 7044866, at *4 (E.D.N.Y. July 18, 2013), involved a challenge to “vitaminwater” product, alleging that it misled consumers to believe the beverage was comprised of vitamins and water, obscuring its significant sugar content. The court refused to dismiss, considering slogans such as “vitamins + water = what’s in your hand,” as well as the name of the product itself. The sugar content disclosure on the nutrition label “[did] not eliminate the possibility that reasonable consumers may be misled” regarding the contents. But here, Sapporo disclosed its product origin in a standalone statement, unlike the line listing the sugar content on the vitaminwater nutrition label. “Imported” was a truthful statement, unlike “vitamins + water = what’s in your hand,” and it was qualified by the “visible disclosure statement specifying the beer’s origin.”   The court also distinguished Marty v. Anheuser-Busch Companies, LLC, 43 F. Supp. 3d 1333 (S.D. Fla. 2014), where Beck’s beer, once from Germany but produced in Missouri, used slogans including “Brewed under the Germany Purity Law of 1516” coupled with a vague disclaimer in white font on a silver background making it physically “difficult to read.”  “Unlike the cases cited by Plaintiff, the disclosure statement on Sapporo appears in contrasting, visible font, and states in clear language where the product is produced.” This defeated all plaintiff’s common-law and statutory claims.