Tequila and the principle of the 7 differences

“They are just doing what they always do: copying other brands.” The CEO of Tequila 512 is not a big fan of the Kardashians in general and of their sister Kendall Jenner in particular. The reason for this is Tequila 818, Kendall’s new brand of tequila…..well, that’s if you can call it new. According to Tequila 512, it’s more of a poor imitation.

Allegedly, the concept behind the name has been copied (512 is the postcode of Austin, Texas, 818 that of the San Fernando Valley, Los Angeles and both bottles feature a prominent 1 in the centre); the design is similar (black capital letters on a vertical yellow rectangle) and even the source of the spirit is not original as it comes from the same distillery in Mexico. “And out of the entire world of colors and shapes to use for product design, Defendant chose to copy Plaintiff’s distinctive black lettering inside a vertical yellow rectangle”, said Tequila 512, who find it hard to believe that this is just coincidence.

The coincidences in this case seem to be very coincidental indeed. But if they are not just coincidence, what then? A brazen copy? Inspiration that went a tad too far? Latching onto a style or trend? Cryptomnesia (forgetting that you have seen, read or heard something and then imagining that you have thought it up yourself)?

Differences

We shall probably never know, but the chances are that a dispute like this will immediately provoke thoughts of the notorious 7 Differences Principle in the minds of trademark attorneys. This is a stubbornly persistent theory of how to copy something without getting into legal difficulties. In fact, the 7 Differences Principle amounts to no more than disinformation and delusion – it is the fake news of trademark law – but as it is such a persistent misunderstanding, it might be a good idea to take a closer look at it.

No one knows exactly where the myth of the 7 differences originated, but it resurfaces with monotonous regularity. Sometimes it crops up as bad advice (‘make sure that there are at least 7 differences’), but usually as a defence (‘there are 7 differences you know’).

Similarities!

Looking at these two tequila brands, it cannot be said that they do not resemble each other in their branding, and in a case like this the defence will definitely try to focus on the differences. How convenient it would be if all you had to do was count those differences (‘sorry, there are only 6’).

Unfortunately for the defence, that is not how trademark law works. Counting the differences is nonsensical. In trademark law (just as in copyright law), what matters is the similarities, not the differences. There is a question of infringement if similarities may give rise to confusion, so even if there are 717 differences between two brands, there may still be confusing similarities. The fine line between what is just about permissible and what is beyond the pale must be drawn on a case-by-case basis. That line is never sharply defined – or at least it never looks sharp when you’ve had a few stiff shots of tequila.