Eric Ball and Todd Gregorian Discuss the Brown Jug’s Battle Over ‘Buckeye Tears’ on PLI Pro Bono Podcast

Fenwick partners Eric Ball and Todd Gregorian were featured on the Practising Law Institute’s podcast “Pursuing Justice: The Pro Bono Files” to discuss their representation of the Brown Jug, the iconic Michigan restaurant fighting to register the trademark for its “Buckeye Tears” beer, which isn’t loved by UMich rival Ohio State University.

Gregorian, a Michigan Law graduate, spotted the filing in the news and recruited Ball, head of Fenwick’s trademark litigation group, to take the case pro bono. 

While Fenwick’s wheelhouse is tech and life sciences companies, the Brown Jug is facing the same cost-prohibitive litigation from a large opponent that many emerging companies do, Gregorian told PLI.

“The early-stage startup that gets hit with a patent troll suit, that’s not just someone who’s going to take $5,000 to go away, but it’s going to make the company spend millions of dollars to defend it. That’ll end that small business right there in the crib,” he said. 

The Brown Jug began selling a beer called Buckeye Tears last year as a commentary about Ohio State fans. When the restaurant sought to register the name for use with alcoholic beverages, Ohio State filed an opposition. 

Ball and Gregorian walked through Ohio State’s two theories: likelihood of confusion and dilution. Ball explained why he doesn’t see a strong case for either argument, saying, “I don’t think anyone’s confused about the joke,” and adding that the dilution claim faces a higher bar given First Amendment and fair-use protections for parody.

The pair also discussed questions of disparagement and tarnishment more broadly and compared the Brown Jug case to other trademark parody disputes, such as the Jack Daniel’s dog toy case that reached the Supreme Court. 

Listen to the full episode at Practising Law Institute.