Here’s a Vampire tale that you can really sink your teeth into
What’s Halloween without some companies getting into tiffs over which has the right to use the name “vampiro” to market their goods?
It’s all enough to draw blood.
For a brief moment, about as short as a vampire’s nightly rise from the coffin, one of the court fights involved San Antonio grocery chain H-E-B.
Los Angeles-based Vampire Family Brands LLC struck first in August when it sued H-E-B in federal court in Beaumont because the retailer carries a cocktail mix called Gran Agave Mix Vampiro.
Vampiro is Spanish for vampire, and Vampire Family Brands alleged the cocktail mix sold by H-E-B infringed on a family of trademarks bearing the “Vampire” name that it says it controls. Vampire Family Brands products include wine, olive oil, balsamic vinegar and Belgian chocolate.
Vampire Family Brands offered a little history in its complaint.
“The origin of Vampire wine, and Vampire Family Brand’s claim of right goes back to 1988, when its founder released a French bottled Algerian Syrah under the brand name Vampire,” the suit said.
“The first sale was to MCA records and (singer) Alice Cooper, and the wine was promoted under the slogan ‘Sip the Blood of the Vine,’” the complaint said. “Vampire Family Brand’s predecessors in interest began to use the slogan ‘Taste of Immortality’ by at least 1995, if not earlier. Although the labels have changed over the years, along with the sourcing from Algeria to Italy to Transylvania and finally to Napa, the marketing has remained playful.”
Vampire Family Brands, which has the domain name vampire.com, accused H-E-B of “unlawfully marketing and selling” Vampiro. The company added that H-E-B’s acts were harming the Vampire brand, which could lead to consumer confusion.
Before H-E-B even could file an answer to the complaint, though, Vampire Family Brands dropped it Oct. 15.
H-E-B spokeswoman Dya Campos didn’t have much to say about the short-lived legal action.
“This is not one of our products,” she said of Vampiro. “We won’t have a comment.”
The same day Vampire Family Brands voluntarily dismissed the lawsuit, it sued Vampiro maker Patco Brands of Las Vegas in California federal court.
That action essentially repeats many of the allegations that had been made against H-E-B.
Vampire Family Brands, though, also alleged the Vampiro cocktail is not made from spirits but from wine.
“The alcohol tax on distilled spirits is approximately 10 times (if not
more) the tax on wine,” Vampire Family Brands alleges.
Patco and the other defendants in the case “utilize the tax savings to present … fake cocktails to benefit themselves, deceive the public into thinking they are consuming … an authentic cocktail, and unfairly compete with manufacturers of genuine cocktail products,” including Vampire Family Brands.
Vampire Family Brands adds that Patco's Vampiro interferes with plans to release its own Vampiro tequila and Vampiro alcoholic cocktails made from tequila.
Vampire Family Brands
wants the court to award it at least triple the amount of its lost profits or Patco's “illicit profits,” which ever is greater.
The litigation end there.
On Oct. 16, the day after Vampire Family Brands sued Patco, Patco responded by suing the Los Angeles company in San Antonio federal court.
“Vampire Family Brands possesses no proprietary rights in the Spanish-language word ‘vampiro,' which for decades has been the generic name for a cocktail widely believed to originate” in or around the Mexican agricultural village of San Luis Soyatlán.
The website The Nosey Chef called vampiro the national drink of Mexico, the lawsuit noted. A vampiro
doesn't
typically contains fruit juice or sangrita, citrus-flavored soda, lime, tequila and spices.
“Use of the term vampiro with reference to Gran Agave's packaged agave wine version of that Mexican cocktail therefore constitutes fair use, and as a matter of law cannot give rise to liability for infringement of any purported trademark rights of Vampire Family Brands,” Patco says in its suit.
Patco wants the court to issue a judgment declaring the company has the right to continue using “Vampiro” on its products.
Michael Machat, a lawyer for Vampire Family Brands, declined to comment. An attorney for Patco couldn't immediately be reached for comment.