Reference no: EM131144566

Davidson’s Microbrew, Inc. is a small beer manufacturer located in Denver, Colorado. The owner of Davidson’s Microbrew, Benjamin Davidson, takes great pride in offering the public a variety of beers, including a particular one that is currently the subject of litigation. “Barley-Davidson” is a dark brew closely resembling motor oil in its appearance. For the past three (3) years, Barley-Davidson has been sold in orange cans. There is a “bar-and-shield” logo on the can’s front closely resembling the iconic Harley-Davidson logo; in the “bar” portion of the logo, the “Barley-Davidson” name appears, and the words “Asphalt-Dark Beer” appear in the “shield” portion of the logo. On the back of the can, in small but legible print, the following disclaimer appears: “Not affiliated with Harley-Davidson Motor Company.” Barley-Davidson has become Davidson’s Microbrew’s most popular product, selling approximately 250,000 units per year. In its lawsuit against Davidson’s Microbrew, Harley-Davidson has requested an injunction (temporary, pending litigation, and permanent, post-litigation) and money damages based on all profits generated by the defendant in its sale of Barley-Davidson. Davidson’s Microbrew’s defense is based on four (4) contentions: first, its product (beer) is distinguishable from Harley-Davidson’s product (motorcycles); second, its product disclaimer (indicating its non-affiliation with Harley-Davidson Motor Company) is displayed on every can of Barley-Davidson it sells; third, the “Barley” portion of its dark beer’s name has nothing to do with Harley-Davidson; and four, the “Davidson” portion of the beer’s name is proudly associated with the name of the microbrew’s company, and the last name of the microbrew’s founder himself. What is the likely result of the litigation?