Battle of the Spiced Rum: Captain Morgan and Admiral Nelson

Post date: Aug 26, 2011 8:14:27 PM

Do the bottles on the left look familiar? Although this photo is somewhat staged -- the bottles were placed next to each other from different levels of shelving -- it is fairly representative of what you may be faced with when buying spiced rum in a supermarket or liquor store. But here's the real question: which one is Captain Morgan?Honestly, I'm not certain that I would have known the answer if this question were posed to me a few years back before Captain Morgan started their onslaught of advertising featuring the "Captain." But now, because he is becoming more prominent in advertising he is easier to spot, especially his one-leg-hiked stance.For those loyal readers out there, this situation should remind you of the blog post I made about Smirnoff and Sobieski vodka around the beginning of the year. In that post I explained the basics of "trade dress" -- essentially the packaging of a product -- and how it could be infringement if two products were confusingly similar. See where this is going?So let's get down to it. Is there any problem with the two very similarly designed rum bottles above? In short, I would say maybe. Yes, they are both sea commanders and they both love papyrus-colored labels and clothing that combines the colors of red and blue and white. But that's about it. The names themselves are not confusingly similar -- so no straight-up trademark infringement -- but I could see a consumer being confused by looking at the two labels. Here's an interesting question to think about though, would Admiral Nelson's label look like it does if it weren't for Captain Morgan being a popular brand of rum? I would say it is unlikely and the Admiral likely copied off of the Captain, but it is impossible to know for sure. As with every other intellectual property issue I write about, there isn't a clear-cut answer.

I did a little research and both Captain Morgan and Admiral Nelson are registered trademarks (CAPTAIN MORGAN back in 1984 and ADMIRAL NELSON'S in 2001). Sure, the labels are very similar, but I don't know if I would go as far to say that they are "confusingly similar." That being said, I would not be surprised at all if Captain Morgan went after Admiral Nelson for TM infringement, although less likely now since the Admiral has been around for 10 years.At first it didn't make sense as to why Captain Morgan would not go after Admiral Nelson for trademark infringement. But then I thought about it, did a little research, and it all became clear: Admiral Nelson outranks Captain Morgan. Simply put: chain of command.So the next time you are looking for a spiced rum see if there is any confusion -- even for a second -- when the two bottles catch your eye. I think there is.