Suzie's TRO Motion

Case 3:21-cv-00178-SI Document 3 Filed 02/02/21 Page 1 of 17
Daniel C. Peterson, OSB No. 064664

Email: dpeterson@cosgravelaw.com
Amber A. Beyer, OSB No. 173045
Email: abeyer@cosgravelaw.com
COSGRAVE VERGEER KESTER LLP
900 SW Fifth Avenue, 24th Floor
Portland, Oregon 97204
Telephone: 503-323-9000
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Attorneys for Plaintiff Suzie’s Brewery Company
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
SUZIE’S BREWERY COMPANY, an Oregon Case No. 3:21-cv-00178

corporation,
Plaintiff Suzie’s Brewery Company’s
Plaintiff, MOTION FOR TEMPORARY
RESTRAINING ORDER AND
v. PRELIMINARY INJUNCTION
ANHEUSER-BUSCH COMPANIES, LLC, a

Delaware limited liability company,
ANHEUSER-BUSCH INBEV WORLDWIDE, Oral Argument Requested
INC., a Delaware corporation,
Defendants.
LR 7-1 CERTIFICATION
Plaintiff’s counsel certify that they have conferred over telephone and by letter and e-
mail with defendants’ counsel, Brian L. Heidelberger, Loeb & Loeb LLP, about the issues raised
by this motion but were unable to resolve the dispute. In addition, on Tuesday, February 2,
plaintiff’s counsel informed Mr. Heidelberger by telephone and e-mail that: plaintiff intended to
file this motion; that plaintiff would seek an immediate hearing on its request for a temporary
restraining order; and that plaintiff would inform Mr. Heidelberger of the date and time of the
hearing as soon as it is set.
Cosgrave Vergeer Kester LLP

Page 1 – Motion for Temporary Restraining Order and Preliminary Injunction 900 SW Fifth Avenue, 24th Floor
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MOTIONS FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Pursuant to Fed. R. Civ. P. 65 and Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),
plaintiff Suzie’s Brewery Company (“Suzie’s Brewery”) moves for a Temporary Restraining
Order (“TRO”) and Preliminary Injunction prohibiting defendants from making false and
misleading statements in their advertising of Michelob ULTRA Organic Seltzer. Specifically,
Suzie’s Brewery seeks an order enjoining defendants Anheuser-Busch Inbev Worldwide, Inc.
and Anheuser-Busch Companies, LLC, and their employees, contractors, agents, servants,
officers, and/or members, and all other persons in active concert with defendants (collectively,
“Anheuser-Busch”) from falsely advertising that Michelob UTRA Organic Hard Seltzer is the
“first” or “first-of-its-kind” or “only” national USDA certified organic hard seltzer, or other
similarly false and misleading statements, in connection with the marketing, promotion, and sale
of Michelob ULTRA Organic Seltzer, including during the upcoming nationally televised NFL
Super Bowl LV and related programming on February 7, 2021. Suzie’s Brewery has no
adequate remedy at law.
This motion is supported by the records and files herein; the declarations of Chris
Barhyte, Brandon Krigbaum, John Lipp, Ryan Becker, and Kris Carlisle and the memorandum of
law below.
MEMORANDUM OF LAW
I. INTRODUCTION
Using the bully-pulpit its massive national advertising budget allows, Anheuser-Busch
has premiered a new false and misleading advertising campaign aimed at convincing health-
conscious drinkers that its new organic hard seltzer is a unique, one-of-a-kind product. To be

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clear, it is not. Anheuser-Busch will continue to pursue its strategy of unfairly squeezing out its
smaller competitors in the organic hard seltzer market (like Suzie’s Brewery) unless this court
puts a stop to its misconduct.
On Sunday, January 24, 2021, during the nationally televised Conference Championship
NFL playoff games, Suzie’s Brewery discovered that Anheuser-Busch aired a commercial
advertisement for its Michelob ULTRA Organic Seltzer, claiming it is the “only national USDA
organic certified seltzer.” This was not an isolated statement, and in fact, Suzie’s Brewery
learned that approximately 10 days earlier, Anheuser-Busch launched a national advertising
campaign for its newly released organic hard seltzer with similar statements regarding it being
the “first” or “first-of-its-kind” or “only” national USDA organic certified seltzer. These
statements are patently and materially false. Suzie’s Brewery, an Oregon-based beverage
manufacturer, also manufactures an organic hard seltzer—Suzie’s Organic Hard Seltzer—which
has had the national USDA organic certification since June 2020 and has been available on the
market since July 2020, making it a direct competitor of Anheuser-Busch.
Of grave and more pressing concern, Suzie’s Brewery recently learned that Anheuser-
Busch would be advertising Michelob ULTRA Organic Seltzer during the upcoming nationally
televised NFL Super Bowl LV, which last year reached a viewership of 99.9 million people in
the United States. This advertisement airing during an event of such widespread viewership is
likely to have a deleterious effect on the emerging Suzie’s Organic Hard Seltzer. As Anheuser-
Busch’s false and misleading statements have caused and will continue to cause irreparable harm
to Suzie’s Brewery, Suzie’s Brewery moves for a TRO enjoining Anheuser-Busch from falsely
advertising that its Michelob ULTRA Organic Seltzer is the “first” or “first-of-its-kind” or
“only” national USDA organic certified seltzer, or similarly false and misleading statements,

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including but not limited to, during the upcoming Super Bowl LV and the related programming
scheduled to take place on February 7, 2021.
II. FACTUAL BACKGROUND
A. Suzie’s Brewery
Suzie’s Brewery is a small, family-owned business based in Pendleton, Oregon.
Declaration of Chris Barhyte [Barhyte Decl.], ¶ 2. Prior to starting Suzie’s Brewery, the Barhyte
family has long been involved in other food and beverage industry businesses. Id. In fact, the
family business traces its lineage back to a mustard manufacturer in the 18th Century, with its
recipe travelling west on the Oregon Trail. Id. As the family business grew, it expanded to new
mustards, marinades and sauces, and developed an organic line called Suzie’s Organics. Id.
In fall of 2019, the Barhyte
family saw an opportunity to expand its
renowned organic brand by entering the
popular and fast-growing hard seltzer
market, and Suzie’s Brewery was born.
Id. at ¶ 3. Based upon customer feedback that organic products and options are of significant
importance to consumers in deciding which product to purchase, Suzie’s Brewery knew that it
wanted its hard seltzer to be organic. Id. Therefore, in July 2020, it started manufacturing
Suzie’s Organic Hard Seltzer, a registered trademark. Id. at ¶ 4. Suzie’s Organic Hard Seltzer
received its certification under the USDA’s National Organic Program1 on June 1, 2020, and was
introduced to the hard seltzer market on July 21, 2020. Id. It is distributed nationwide, with
1
See https://www.ams.usda.gov/about-ams/programs-offices/national-organic-program

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current distribution in Oregon, Washington, Idaho, Wyoming, Colorado and New Jersey, and it
will be introduced in other states soon. Id.
B. Anheuser-Busch Falsely Advertises its Product as the “First” and “Only”

National USDA Organic Certified Hard Seltzer
On January 13, 2021, Anheuser-Busch kicked off a national ad campaign for its
Michelob ULTRA Hard Seltzer on TV, Out of Home advertising (billboards, posters, etc.),
digital, radio and social media.2 The January 13, 2021 Press Release was entitled “Michelob
ULTRA Introduces First National USDA Certified Organic Hard Seltzer . . . .” The
advertisements claim that Michelob ULTRA is the “first-ever national USDA certified organic
hard seltzer” and “first-of-its-kind organic option to the hard seltzer category.” The national ad
campaign has permeated the Internet, including major news websites such as PR Newswire3 and
the Associated Press4, as well as multiple other media outlets5, and has been widely spread
throughout Anheuser-Busch’s and other social media networks. In releasing its organic hard
seltzer on the market in January 2021, Anheuser-Busch became a direct competitor of Suzie’s
Brewery. Barhyte Decl. ¶ 5.
2
https://www.anheuser-busch.com/newsroom/2021/01/michelob-ultra-introduces-first-
national-usda-certified-organic-.html
3
https://www.prnewswire.com/news-releases/michelob-ultra-introduces-first-national-
usda-certified-organic-hard-seltzer-thats-as-real-as-it-tastes-with-the-launch-of-michelob-ultra-
organic-seltzer-301207556.html
4
https://apnews.com/press-release/pr-newswire/6f020da1f3293c606f56f1733900b2e2
5
https://www.newsbreak.com/news/2144211151771/michelob-ultra-introduces-first-
national-usda-certified-organic-hard-seltzer; https://hardseltzernews.com/michelob-makes-the-
ultra-seltzer/; http://spiritedzine.com/michelob-ultra-launches-organic-hard-seltzer-range/

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On Sunday, January 24, 2021, during the nationally
televised NFL playoff game, Anheuser-Busch ran a
commercial advertisement for its organic hard seltzer.6 Id.
The advertisement prominently stated that Michelob ULTRA
Organic Seltzer is the “only national USDA organic certified
seltzer.”
Suzie’s Brewery has since learned that Anheuser-Busch would be advertising Michelob
ULTRA Organic Seltzer during the upcoming Super Bowl LV.7 Id. at ¶ 6. This is of particular
and serious concern to Suzie’s Brewery because the Super Bowl reaches a viewership of
approximately 99.9 million people. Id. The fact a false and materially misleading advertisement
from a prominent manufacturer has reached and may continue to reach such a significant portion
of the market will have serious and harmful consequences for competitors such as Suzie’s
Brewery. Id.
C. Suzie’s Brewery’s Customers and Distributors Raise Concerns
Anheuser-Busch’s false advertising campaign surrounding the Michelob ULTRA
Organic Seltzer has deceived a substantial portion of the viewing audience, including Suzie’s
Brewery’s customer base and business partnerships. Id. at ¶ 7-8. Suzie’s Brewery has received
multiple inquiries from consumers asking whether Suzie’s Organic Hard Seltzer is truly organic
after they saw Anheuser-Busch’s advertising. Id. at ¶ 7; Declaration of John Lipp [Lipp Decl.], ¶
2-3, Declaration of Kris Carlisle [Carlisle Decl.], ¶ 2-3; Declaration of Ryan Becker [Becker
6
https://drugstorenews.com/michelob-ultras-hard-seltzer-gets-organic-twist
7
https://twitter.com/AnheuserBusch/status/1353806303861288961?s=20

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Decl.], ¶ 2-3. At least one prominent retailer has also questioned the organic nature of Suzie’s
Hard Seltzer after seeing the Michelob ULTRA Organic Seltzer’s advertisements as the “first-
ever national USDA certified organic hard seltzer,” “first-of-its-kind organic option to the hard
seltzer category,” and other similar statements. Declaration of Brandon Krigbaum [Krigbaum
Decl.] ¶ 2. These statements have damaged Suzie’s Brewery’s reputation and business goodwill,
and threatened its distribution opportunities. Id. at ¶ 3; Barhyte Decl., ¶ 7.
D. Anheuser-Busch’s Ad Has Deceived a Substantial Portion of Its Audience
Even relatively sophisticated audience members, like the recognized TV advertisement
measurement website, ispot.tv, have been fooled by Anheuser-Busch’s false advertising.
Barhyte Decl., ¶ 8. Ispot.tv is a TV advertising tracking platform used by brands and
competitors to track TV advertisement data. Id. Its stated purpose is to “transform TV Ad
Measurement to be Based on Outcomes.” Id. That platform shows that Anheuser-Busch’s false
advertisement has reached over 280 million viewers, and concluded that Michelob ULTRA Hard
Seltzer “is also claimed to be the sole USDA certified organic hard seltzer.” 8 Id. Additionally,
independent news source, USA Today, published an article that characterized Michelob ULTRA
hard seltzer as the “first USDA-certified organic hard seltzer.”9 Id. The fact that Anheuser-
Busch’s false advertisements have even deceived independent news and TV advertising
measurement platforms is indicative of how widespread its deception runs among the consumer
audience. Id.
8
https://www.ispot.tv/ad/tEOu/michelob-ultra-organic-seltzer-cucumber-lime-not-
playing-around
https://www.usatoday.com/story/money/business/2021/01/27/bud-light-seltzer-
9
lemonade-michelob-ultra-hard-seltzer-flavors-debut/6564645002/

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Anheuser-Busch’s deception is particularly concerning to Suzie’s Brewery, who has
received extensive customer feedback that the organic certification is of significant importance to
its consumers in deciding which beverage or food product to purchase. Id. at ¶ 3; Lipp Decl., ¶
2; Carlisle Decl., ¶ 2; Becker Decl., ¶ 2.
III. ARGUMENT
A. Legal Standard for Preliminary Injunction
A plaintiff who seeks a preliminary injunction must show: “[1] that he is likely to
succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in
the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). If the
balance of equities tips “sharply” in the plaintiff’s favor, then a court may issue a preliminary
injunction upon a showing that there are “serious questions going to the merits—a lesser
showing than likelihood of success on the merits.” Shell Offshore, Inc. v. Greenpeace, Inc., 709
F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011)). “Serious questions need not promise a certainty of success, nor
even present a probability of success, but must involve a ‘fair chance of success on the merits.’”
Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.1988) (quoting Nat’l
Wildlife Fed'n v. Coston, 773 F.2d 1513, 1517 (9th Cir.1985)). Here, Suzie’s Brewery easily
meets either bar.
B. Suzie Brewery’s is Likely to Succeed on the Merits of Its False Advertising

Claim
The purpose of Lanham Act is to protect consumers from anti-competitive behavior
including false advertising relating to a person’s product or service. See 15 U.S.C. §
1125(a)(1)(A); POM Wonderful LLC v. Coca Cola Co., 573 U.S. 102, 108, 134 S. Ct. 2228,
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2234, 189 L. Ed. 2d 141 (2014). To prevail on a false advertising claim under the Lanham Act, a
plaintiff must establish that: (1) the defendant made a false statement of fact in a commercial
advertisement; (2) the statement deceived or has the tendency to deceive a substantial segment of
its audience; (3) the false statement is material in that it is likely to influence the purchasing
decision; (4) the defendant caused the false statement to enter interstate commerce; and (5) the
plaintiff has been or is likely to be injured as a result of the false statement, either by direct
diversion of sales from itself to the defendant or by a lessening of the goodwill associated with
its products. 15 U.S.C. § 1125(a)(1)(b); Southland Sod Farms v. Stover Seed Co., 108 F.3d
1134, 1139 (9th Cir. 1997). Suzie Brewery’s is likely to prevail on each element of its claim.
(1) Anheuser-Busch Made False Statements in its Commercial Advertising
To demonstrate a false statement under the Lanham Act, a plaintiff must show that “the
statement was literally false, either on its face or by necessary implication, or that the statement
was literally true but likely to mislead or confuse consumers.” Southland Sod Farms, 108 F.3d
at 1139. To determine whether an advertising claim is literally false, it must be “clearly one of
fact, able to be proven true or false.” Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173
F.3d 725, 732 (9th Cir. 1999).
Here, there can be no question that Anheuser-Busch’s statements that the Michelob
ULTRA Organic Hard Seltzer is the “only national USDA organic certified seltzer,” or the “first-
ever” or “first-of-its-kind” organic hard seltzer are literally false, under any reasonable
interpretation. The irrefutable facts shows that Suzie’s Brewery also manufactures and
distributes a hard seltzer that has been certified as organic by the USDA’s “National Organic
Program” and did so for at least five months before Michelob ULTRA Organic Hard Seltzer hit

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the market. Barhyte Decl., ¶ 3-4.10
Additionally, there can be no dispute that the false statements made (and continuing to be
made) by Anheuser-Busch are made in commercial advertising. The test for “commercial
advertisement” is: “(1) commercial speech; (2) by a defendant who is in commercial competition
with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or
services”; and (4) the advertisement or promotion “must be disseminated sufficiently to the
relevant purchasing public to constitute advertising or promotion within that industry.” Coastal
Abstract Serv., Inc., 173 F.3d at 735 (internal citation omitted). Anheuser-Busch’s statements
made as a part of its national ad campaign, including nationally televised commercials and media
distributed throughout the Internet, are commercial advertisements.
(2) Anheuser-Busch’s False Statements are Deceptive
The second element of a false advertising claim requires that the statement actually
deceive or has a tendency to deceive a substantial portion of its audience. Southland Sod Farms,
108 F.3d at 1139. Statements that are literally false are presumed to have a tendency to deceive.
Collegenet, Inc. v. XAP Corp., 442 F. Supp. 2d 1070, 1079 (D. Or. 2006) (citing Clorox Co.
Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 33 (1st Cir. 2000)); see also
McNeil–P.C.C., Inc. v. Bristol–Myers Squibb Co., 938 F.2d 1544, 1549 (2d Cir.1991) (When
“the advertising claim is shown to be literally false, the court may enjoin the use of the claim
without reference to the advertisement’s impact on the buying public.”) (internal quotations and
citation omitted).
As Anheuser-Busch’s statements are literally false – it is neither the first nor the only
10
At the very least, the statements are materially misleading. See 15 U.S.C. § 1125(a)(1)
(prohibiting “false or misleading” descriptions or representations of fact).

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national USDA certified organic hard seltzer – Suzie’s Brewery is entitled to a presumption that
these statements deceived the consumer public. Additionally, Suzie’s Brewery has submitted
ample evidence demonstrating that Anheuser-Busch’s statements have actually deceived its
customer consumer and the consumer audience at large. Barhyte Decl., ¶ 7-8; Krigbaum Decl., ¶
2; Lipp Decl., ¶ 2-3; Becker Decl., ¶ 2-3; Carlisle Decl., ¶ 2-3. This element has been met.
(3) Anheuser-Busch’s Deception is Material
The third element of a false advertising claim under the Lanham Act is that the deception
is “material,” that is, the false statements made in its commercial advertising are likely to
influence the purchasing decision. Southland Sod Farms, 108 F.3d at 1139. Here, Suzie’s
Brewery is likely to succeed on the “materiality” element. The irrefutable evidence shows that
organic products, a certification provided by the USDA’s National Organic Program, are of
profound importance to the large and growing hard seltzer consuming market in making
purchasing decisions. This fact is not lost on Anheuser-Busch, whose television and online
advertisements prominently emphasize its certification through the USDA’s National Organic
Program. Indeed, Suzie’s Brewery has long been aware of the significance of organic products
to its consumers, and has received repeated customer feedback that its organic certification is the
reason many consumers choose Suzie’s over another brand. Barhyte Decl., ¶ 3; Lipp Decl., ¶ 2;
Becker Decl., ¶ 2; Carlisle Decl., ¶ 2.
(4) Anheuser-Busch’s False Statements Entered Interstate Commerce
By posting its press release on its social media and the Internet and airing its commercials
on national television, there can be no question that Anheuser-Busch caused the false statements
to enter interstate commerce. See United States v. Sutcliffe, 505 F.3d 944, 953 (9th Cir. 2007)
(stating that “the Internet is both an instrumentality and channel of interstate commerce”). This

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element of the claim has been met.
C. Suzie’s Brewery will Suffer Irreparable Harm if Anheuser-Busch Continues

its False Advertising Campaign
Suzie’s Brewery will suffer irreparable harm if Anheuser-Busch is permitted to continue
spreading its false and misleading statements, including during the upcoming Super Bowl LV or
the pre- or post-game shows. Even if the specific ad in question does not air during the game,
any advertising of Michelob ULTRA’s Organic Seltzer is likely to cause interested consumers to
look further and discovery the readily available false advertising on the internet, social media,
and other sources. Suzie’s Brewery has already suffered loss of goodwill, including harm to its
reputation, as a result of Anheuser-Busch’s false and misleading advertisements released to date.
See Life Alert Emergency Response, Inc. v. LifeWatch, Inc., 601 F. App'x 469, 473–74 (9th Cir.
2015) (concluding that threat to a company’s reputation and goodwill “constitutes irreparable
harm, as it is not readily compensable.”). Indeed, in the short span of the past two weeks,
Suzie’s Brewery has received multiple complaints and concerns from its consumers and at least
one retailer questioning its organic certification. Barhyte Decl., ¶ 7; Krigbaum Decl., ¶¶ 2-3,
Lipp Decl., ¶ 3; Becker Decl., ¶ 3; Carlisle Decl., ¶ 3.
None of these complaints or concerns is surprising. Anheuser-Busch’s statement – that
its product is the “only national USDA certified organic hard seltzer” – not only misleads
consumers about the organic hard seltzer options that are available, but also directly calls into
question the truthfulness of Suzie’s Organic Hard Seltzer’s certification through the USDA
National Organic Program. Such a statement from a well-known and prevalent manufacturer is
likely to cause consumers to doubt an emerging but competitive brand like Suzie’s. One
wonders why Anheuser-Busch chose to feature such statements as a primary focus of its
advertising campaign when they are not only false, but can be readily fact-checked through a
simple search of the Internet.
The harm to Suzie’s Organic Hard Seltzer will increase significantly if Anheuser-Busch

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is permitted to air and/or perpetuate its false statements on a national scale. Approximately 100
million viewers tuned into the Super Bowl last year, or about 67% of U.S. homes. False
advertisements made during such widely viewed television programming have damaged business
competitors, both small and large alike. Anheuser-Busch is no stranger to the harms caused by
its false advertising during the Super Bowl. Following the 2019 Super Bowl LIII, MillerCoors,
LLC successfully obtained a preliminary injunction against Anheuser-Busch Companies, LLC,
arising out of misleading advertisements it ran during the Super Bowl LIII regarding its
competitor’s use of corn syrup in brewing. See MillerCoors, LLC v. Anheuser-Busch
Companies, LLC, 385 F. Supp. 3d 730, 758 (W.D. Wis. 2019), modified, No. 19-CV-218-WMC,
2019 WL 4187489 (W.D. Wis. Sept. 4, 2019), modified, No. 19-CV-218-WMC, 2019 WL
4247725 (W.D. Wis. Sept. 6, 2019).11 12
Should Anheuser-Busch be permitted to continue spreading its false statements on a
national platform, including during the upcoming Super Bowl and its related programming
(either directly or by encouraging consumers to investigate the brand), Suzie’s Organic Hard
Seltzer is likely to suffer further damage to its reputation and goodwill, as well as loss of market
share. It is well-recognized that it can be “virtually impossible to prove that so much of one’s
sales will be lost or that one’s goodwill will be damaged as a direct result of a competitor’s
advertisement,” and that a plaintiff “need not . . . point to an actual loss or diversion of sales” to
satisfy this requirement. See Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 161–63
11
In granting the preliminary injunction the court found that MillerCoors had put forth
sufficient evidence, including social media and consumer comments, to support a finding that the
reputation of its light beers had been injured by Anheuser-Busch’s misleading advertisements.
Id.
12
Anheuser-Busch did not appeal the court’s initial injunction, but MillerCoors did.
While the appeal was pending, the district court issued a new order, purporting to amend the
existing one, granting additional injunctive relief against Anheuser-Busch. Anheuser-Busch
appealed the modified order, which was later modified again. On appeal of the final order, the
Court of Appeals reversed the order. Molson Coors Beverage Co. USA LLC v. Anheuser-Busch
Companies, LLC, 957 F.3d 837, 838 (7th Cir. 2020).

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(2d Cir. 2007) (citing Coca–Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 316 (2d Cir.
1982)); CJ Prods. LLC v. Snuggly Plushez LLC, 809 F.Supp.2d 127, 149 (E.D.N.Y. 2011).
Rather, where the parties are direct competitors, proof that consumers are likely to be
misled is sufficient to show irreparable harm. See Chobani, LLC v. Dannon Co., Inc., 157 F.
Supp. 3d 190, 204–05 (N.D.N.Y. 2016) (finding of irreparable harm is warranted in a context
where “the parties are competitors in the relevant market” and “there is a logical causal
connection between the alleged false advertising and its own sales position”); CJ Prods, LLC,
809 F. Supp. 2d at 149 (between competitors, “the sales of one party’s products would certainly
impact the sale of the other party’s product”).
Here, there is no question that the parties are in direct competition in the national market
of organic hard seltzer. Likewise, it is equally without question that Anheuser-Busch’s false
statements effectively questioning the veracity of Suzie’s Organic Hard Seltzer will impact its
distribution and sales opportunities and brand growth.
D. The Balance of the Equities Favors Suzie’s Brewery
The balance of the equities strongly weighs in favor of Suzie’s Brewery. Anheuser-
Busch is unable to assert an equitable interest in continuing a false advertising campaign. See CJ
Prod. LLC, 809 F. Supp. 2d at 149; Mkt. Track, LLC v. Efficient Collaborative Retail Mkt. Track,
LLC, 2015 WL 3637740, at *23 (N.D. Ill. June 11, 2015) (Defendant “has no right to make false
statements in its advertising, and enjoining it from engaging in lawful behavior is no hardship at
all.”). Additionally, presumably Anheuser-Busch was aware of the false statements it was
making, but chose to continue to feature them anyway in its national advertising campaign.
Suzie’s Brewery, on the other hand, is a small, family-owned organic hard seltzer
manufacturer that, by virtue of its USDA National Organic Program certification and the national
distribution of its product, is a direct competitor with Anheuser-Busch. The reality is that
Suzie’s Brewery relies upon the protective provisions of the Lanham Act, and its prohibition
against false and misleading advertising, to ensure that it remains a viable competitor to massive

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companies like Anheuser-Busch that have the means to pursue and profit from anti-competitive
advertising. Through its position in the market and false advertising campaign, Anheuser-Busch
is positioned to run smaller but emerging competitors like Suzie’s Brewery out of the hard
seltzer market altogether, thereby achieving its falsely advertised claim.
Additionally, Suzie’s Brewery made no delay in raising its concerns to Anheuser-Busch.
Immediately upon learning of Anheuser-Busch’s false advertising campaign during the January
24, 2021 NFL playoff game, and learning of Anheuser-Busch’s intention to run its
advertisements during the upcoming Super Bowl, Suzie’s Brewery made immediate efforts to
contact Anheuser-Busch to immediately cease and desist its false advertising campaign. As of
this filing, Anheuser-Busch has refused to do so.
E. The Public Interest is Served by Granting the TRO
The public has a strong interest in receiving accurate commercial information, and
avoiding confusion in the marketplace. Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1321 (11th
Cir. 2010) (“[T]he public interest is served by preventing consumer confusion or deception”);
Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 19 (7th Cir. 1992) (“[T]he public interest in
truthful advertising . . . lies at the heart of the Lanham Act.”). As the public has a strong interest
in receiving truthful and accurate information about product options available in the market, this
factor supports issuing a TRO.
IV. CONCLUSION
Suzie’s Brewery has established both a substantial likelihood of success on the merits of
its false advertising claim, and that it will suffer irreparable harm. Additionally, the balance of
the equities favors Suzie’s Brewery, and a temporary restraining order is in the public interest.
Anheuser-Busch has made false and misleading statements in its advertising of its organic hard
seltzer, and is continuing to make them as part of a national advertising campaign. These actions
violate the anti-competitive purpose of the Lanham Act, and will continue to cause irreparable
harm to Suzie’s Brewery. The court should grant this TRO enjoining Anheuser-Busch from

Telephone: 503-323-9000
Facsimile: 503-323-9019
falsely advertising that its Michelob ULTRA Organic Seltzer is the “first” or “first-of-its-kind”
or “only” national USDA organic certified seltzer, or similarly false and misleading statements in
its national advertising campaign.
DATED: February 2, 2021
COSGRAVE VERGEER KESTER LLP
s/ Daniel C. Peterson
Daniel C. Peterson, OSB No. 064664
Amber A. Beyer, OSB No. 173045
Email: dpeterson@cosgravelaw.com
abeyer@cosgravelaw.com
Telephone: 503-323-9000
Fax: 503-323-9019
Attorneys for Plaintiff Suzie’s Brewery Company

Telephone: 503-323-9000
Facsimile: 503-323-9019
CERTIFICATE OF SERVICE
I hereby certify that I caused to be served a true and correct copy of the foregoing
Plaintiff Suzie’s Brewery Company’s MOTION FOR TEMPORARY RESTRAINING
ORDER AND PRELIMINARY INJUNCTION on the date indicated below by:
☐ mail with postage prepaid, deposited in the US mail at Portland, Oregon,
☐ hand delivery,
☐ facsimile transmission,
☐ overnight delivery,
☐ electronic filing notification,
☒ email.
I further certify that said copy was delivered as indicated above and addressed to said
attorney at the address listed below:
Brian L. Heidelberger
Loeb & Loeb LLP
321 North Clark Street, Suite 2300
Chicago, IL 60654
bheidelberger@loeb.com
Of Attorneys for Defendants
DATED: February 2, 2021
s/ Daniel C. Peterson
Daniel C. Peterson

Page 1 – Certificate of Service 900 SW Fifth Avenue, 24th Floor
Telephone: 503-323-9000
Facsimile: 503-323-9019

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Case 3:21-cv-00178-SI Document 3 Filed 02/02/21 Page 1 of 17

Daniel C. Peterson, OSB No. 064664

Attorneys for Plaintiff Suzie’s Brewery Company

UNITED STATES DISTRICT COURT

SUZIE’S BREWERY COMPANY, an Oregon Case No. 3:21-cv-00178

ANHEUSER-BUSCH COMPANIES, LLC, a

hearing as soon as it is set.

Cosgrave Vergeer Kester LLP

MOTIONS FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

misleading statements in their advertising of Michelob ULTRA Organic Seltzer. Specifically,

adequate remedy at law.

Cosgrave Vergeer Kester LLP

puts a stop to its misconduct.

learned that approximately 10 days earlier, Anheuser-Busch launched a national advertising

manufacturer, also manufactures an organic hard seltzer—Suzie’s Organic Hard Seltzer—which

market since July 2020, making it a direct competitor of Anheuser-Busch.

Cosgrave Vergeer Kester LLP

scheduled to take place on February 7, 2021.

II. FACTUAL BACKGROUND

Suzie’s Brewery is a small, family-owned business based in Pendleton, Oregon.

In fall of 2019, the Barhyte

family saw an opportunity to expand its

renowned organic brand by entering the

popular and fast-growing hard seltzer

market, and Suzie’s Brewery was born.

Cosgrave Vergeer Kester LLP

will be introduced in other states soon. Id.

B. Anheuser-Busch Falsely Advertises its Product as the “First” and “Only”

Brewery. Barhyte Decl. ¶ 5.

Cosgrave Vergeer Kester LLP

On Sunday, January 24, 2021, during the nationally

televised NFL playoff game, Anheuser-Busch ran a

commercial advertisement for its organic hard seltzer.6 Id.

The advertisement prominently stated that Michelob ULTRA

Organic Seltzer is the “only national USDA organic certified

C. Suzie’s Brewery’s Customers and Distributors Raise Concerns

Anheuser-Busch’s false advertising campaign surrounding the Michelob ULTRA

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and threatened its distribution opportunities. Id. at ¶ 3; Barhyte Decl., ¶ 7.

D. Anheuser-Busch’s Ad Has Deceived a Substantial Portion of Its Audience

Even relatively sophisticated audience members, like the recognized TV advertisement

measurement website, ispot.tv, have been fooled by Anheuser-Busch’s false advertising.

Barhyte Decl., ¶ 8. Ispot.tv is a TV advertising tracking platform used by brands and

competitors to track TV advertisement data. Id. Its stated purpose is to “transform TV Ad

Cosgrave Vergeer Kester LLP

Anheuser-Busch’s deception is particularly concerning to Suzie’s Brewery, who has

2; Carlisle Decl., ¶ 2; Becker Decl., ¶ 2.

A. Legal Standard for Preliminary Injunction

meets either bar.

B. Suzie Brewery’s is Likely to Succeed on the Merits of Its False Advertising

The purpose of Lanham Act is to protect consumers from anti-competitive behavior

including false advertising relating to a person’s product or service. See 15 U.S.C. §

(1) Anheuser-Busch Made False Statements in its Commercial Advertising

F.3d 725, 732 (9th Cir. 1999).

Cosgrave Vergeer Kester LLP

the market. Barhyte Decl., ¶ 3-4.10

distributed throughout the Internet, are commercial advertisements.

(2) Anheuser-Busch’s False Statements are Deceptive

Cosgrave Vergeer Kester LLP

(3) Anheuser-Busch’s Deception is Material

Becker Decl., ¶ 2; Carlisle Decl., ¶ 2.

(4) Anheuser-Busch’s False Statements Entered Interstate Commerce

Cosgrave Vergeer Kester LLP

Suzie's TRO Motion

Suzie's TRO Motion