Both beverages hit the market in early June.
On June 9, Bischoff, through his company, Eric Bischoff Entertainment, LLC, filed suit against C.I.H., Inc., which runs Cody’s Irma Hotel. In his complaint, Bischoff claims the Irma’s sales of Buffalo Bill Beer and merchandise interfered with his trademark rights to Buffalo Bill Cody Beer.
The Irma managers have denied those claims and filed a counterclaim against Bischoff alleging they own the rights to beverages named after the Cody founder and Western icon.
The referee for the dispute, District Court Judge David Park of Casper, dubbed the first round a draw. In a 12-page decision filed Monday, Park denied requests by each of the parties to immediately stop the other from selling a Buffalo Bill-branded beer. The judge said neither side has shown they’re likely to win yet, and he let the trademark case continue to play out.
Neither party currently has a registered trademark for their beer, Park said. The Irma managers registered Buffalo Bill Beer as trade name on April 5 with the Wyoming Secretary of State’s office, but that’s not the same thing as a trademark; Bischoff applied for a federal trademark on Buffalo Bill Beer on April 12, but the request is still pending with the U.S. Patent Office.
With nothing on the books, Park looked at whether either beer has trademark rights under common law. That standard generally requires a business to show their product was the first on the market and that it’s been established in the public’s mind, Park wrote.
Bischoff has sold more Buffalo Bill Cody Beer — some 90 cases and 18 kegs starting June 8 — but the Irma managers beat it to the market by two days, selling their first 14 bottles of Buffalo Bill Beer on June 6 at the hotel. That was part of a 40-case shipment.
Park said the two-day gap between the first sales of the beers wasn’t enough time for a trademark to be established. Noting similar sales and advertising, he called the dispute too close to call.
“Viewing all of the evidence, both parties score some points,” Park wrote. “The Plaintiff (Bischoff) has evidence of more sales in a wider market; the Defendant (the Irma’s managers) had the first sales, but the sales were smaller and in a limited market.
“Neither party has a long term history of sales ... and neither party has proved that the public has identified its label as ‘the’ Buffalo Bill (Cody) beer,” Park wrote.
The judge’s decision leaves both beers on the market for the time being.
The parties agree there’s no proof of intentional copying, Park wrote, saying it appears to be a coincidence that they both began developing a Buffalo Bill brand of alcohol around the same time.
Buffalo Bill Cody Beer is brewed by Yellowstone Valley Brewing Co. in Billings. Buffalo Bill Beer has been made by the Snake River Brewing Company in Jackson.
Neither should be confused with Buffalo Bill’s Brewery in Hayward, Calif.