Written by: Nicholas Holmes

Whether you know of the legendary golfer Arnold Palmer or not, aptly nicknamed “The King,” odds are you’ve purchased or ordered the refreshing beverage combining iced tea and lemonade, otherwise known as an “Arnold Palmer.” Arnold Palmer Enterprises owns, among many others, two trademark registrations for the mark Arnold Palmer in both standard characters and stylized wording, for tea-based beverages. Beverage giant, Arizona, has used Arnold Palmer’s image and name for the beverage since 2002.

Enter Liquid Death, a canned water company that was founded in 2017. Earlier this year, Liquid Death announced that the company would be expanding their offerings, including three new iced tea beverages. One of the new iced tea beverages was given the name “Armless Palmer,” a clear choice by Liquid Death to create a connection between Liquid Death’s lemonade and iced tea offering and Arnold Palmer.

Almost immediately, Arnold Palmer’s estate threatened Liquid Death with a lawsuit over the name “Armless Palmer,” as it is confusingly similar to the registered mark “Arnold Palmer.” In trademark law, senior users of a mark (users who have been using a mark longer than others) can prevent junior users (users who have not been using a mark longer than the senior user) from using, advertising, and attempting to register a confusingly similar mark, for identical or confusingly similar goods and/or services. This prevents consumer confusion in the marketplace. In fact, it is a requirement that owners of a federally registered tradedmark police and enforce their trademark rights to prevent marketplace confusion.

With the threat of a lawsuit looming over Liquid Death, the company rebranded the iced tea and lemonade beverage from “Armless Palmer” to “Dead Billionaire.” Arnold Palmer, at the time of his death, had an adjusted career earnings of over $1.3 billion. In a satirical, almost petty Instagram post, Liquid Death announced the rebrand stating “[t]hey wanted to sue us, so we changed the name.” The post also goes onto say “[i]f you like our Armless Palmer tea/lemonade, then you are going to LOVE our new Dead Billionaire tea/lemonade. Why? Because it’s the EXACT same thing, only now it has a way cooler name that won’t require us to fight a senseless legal battle with a large enterprise who sent us a letter saying we can’t use the word “Palmer” and who are also partnered with a giant iced tea corporation. Liquid Death received negative backlash for both the rebrand and Instagram post, as the name “Dead Billionaire” disparages the highly philanthropic Arnold Palmer.

While Liquid Death’s initial brand name and subsequent rebrand may have been a genius marketing ploy, the trademark lesson in this legal battle is two-fold: First, companies looking to create and use a new brand name should always conduct a preliminary search to determine the availability of their exact mark, or any similar mark. Confusion, much like in this case, can occur even if the marks are not identical. This will save time, and most importantly money, in the long run. As the case here, Liquid Death did not have the capital to be able to fight this potential trademark battle. Second, owners of a federal trademark registration must always monitor for infringing or confusingly similar marks and take the steps necessary to police and protect their federal registrations.

As Liquid Death learned the hard way, if you take a shot at the King, you best not miss.

This publication is distributed with the understanding that the author, publisher, and distributor of this publication and any linked publication are not rendering legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.