Litigation Isn’t Always the Best Strategy

Just because you can sue, doesn’t mean you should.

By now, everyone has seen the Anheuser-Busch advertising campaign that proclaims Bud Light does not contain corn syrup—contrasted with images showing that its competitor’s beers, Miller Lite and Coors Lite, do contain corn syrup. Clever advertising, in my opinion.

And, not just clever … it must have been effective.

MillerCoors sued Anheuser-Busch, essentially alleging false and misleading advertising. In my experience as a lawyer and business advisor, this is an ill-advised use of resources. Although MillerCoors can certainly afford to litigate, it doesn’t seem like a good strategy. Just because you can sue, doesn’t mean you should.

Here are 4 reasons this is an ill-advised strategy:

1. By suing Anheuser-Busch, MillerCoors is effectively announcing to the world that the Anheuser-Busch advertising campaign is successful.
2. It makes MillerCoors look like a sore loser and consumers don’t purchase from losers.

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*Update 6.18.2019

This lawsuit is by MillerCoors against Anheuser-Busch for their advertising campaign during Super Bowl LIII that proclaimed Bud Light didn’t contain corn syrup. The ad contrasted its proclamation with images showing that its competitor’s beers, Miller Lite and Coors Lite, did contain corn syrup. That cost MillerCoors some market share. Instead of becoming creative and fighting sugar with sugar, they resorted to the stodgy old response of suing Anheuser-Busch for false advertising.

MillerCoors certainly has the right to sue. And they may ultimately win in court and collect money damages from Anheuser-Busch. Ultimately, however, I continue to believe that this lawsuit is an ill-advised use of resources. Even though the Court sided with them in the interim at the end of May, the Court decided that, for the time being and until further order of the Court, Anheuser-Busch may not use the following language:

• Bud Light contains “100% less corn syrup”;
• Bud Light in direct reference to “no corn syrup” without any reference to “brewed with,” “made with” or “uses”;

• Miller Lite and/or Coors Light and “corn syrup” without including any reference to “brewed with,” “made with” or “uses”; and
• Describing “corn syrup” as an ingredient “in” the finished product.

This means that Anheuser-Busch may not continue their (very clever imho) advertising campaign … for now. So, MillerCoors won this battle in Court. But, it hasn’t won the battle of public opinion and regained market share. And, I still question how litigating claims that in essence argue you are a loser help you regain market share.

I am sticking with my original 4 reasons—slightly revised—that this is an ill-advised strategy:

1. By suing Anheuser-Busch, MillerCoors has effectively announced to the world that the Anheuser-Busch advertising campaign is successful.
2. The likelihood of success on the merits seems more likely, given the Judge’s initial Order, but in order to recoup litigation investment, MillerCoors must prove that Anheuser-Busch bested them in their advertising campaign and took market share.
3. It makes MillerCoors look like a sore loser, and consumers don’t purchase from losers.
4. The hundreds of thousands of dollars that MillerCoors will spend on this whiny litigation could be spent on a creative marketing campaign of their own to regain some of that market share that has been slipping away.

And, then there is the basic fact that this case is interesting to lawyers and we will blog about it. The message is out. I maintain that MillerCoors, its shareholders, and its consumers are better off with a creative counter-marketing campaign. Make it fun. And tasty.

Just because you can, doesn’t mean you should. Litigation is not always the best strategy.