Intellectual Property Law

Seahawks Fans Cry Foul Over "Large" Beers Served at Qwest Field

By Michael Atkins

This weekend, The Seattle Times reported a big story at Qwest Field.

No, it wasn’t that the 7-9 Seattle Seahawks managed to upend the defending Super Bowl champs, the New Orleans Saints.

That was certainly a surprise, and around here is big news.

But it’s not the story some are talking about.

Some instead are talking about the story that revealed vendors at Seahawks stadium have been charging $1.25 more for a “large” beer than the “small” beer that actually is the same size.

“The Seattle Times did a test before the start of the game to check the size of the glasses and confirmed that they [both] were 20 ounces,” the paper reported.

For those who paid more than needed, it’s an outrage. But was it illegal?

Section 43(a)(1) of the Lanham Act prohibits a “false or misleading description of fact,” and a “false or misleading representation of fact” that is likely to cause confusion or mistake. It also prohibits sellers from misrepresenting “the nature, characteristics, [or] qualities” of their goods or services.

Washington’s Consumer Protection Act similarly outlaws false statements or misleading acts that deceive consumers.

Under either statute, a threshold question is whether anything in the sales was false or misleading.

Fans who paid for a small-sized beer and got the same quantity as a large got a bargain.

So is the beer cup half-empty or half full?

Half-empty, say those who paid more for the same size as the small.

Half-full, say the sellers, who argue those who purchased a small beer got a bonus — a large-sized drink for the price as a small. From the seller’s perspective, the fans who opted for the large size merely didn’t get the windfall the small purchasers received; they got exactly what they paid for.

But doesn’t “large” — with its higher price — imply a larger quantity than a “small”?

How many fans would have paid the higher price for a large if they had known they could get the same amount of product for less?

Unhappy purchasers of the “large” size also point out the cups look different. The “large” 20 ounce cup is tall but narrow; the “small” is short and wide. While this could be an honest mistake — and for all I know this situation is chargeable to an independent contractor rather than the stadium or team — it doesn’t smell right.

This supposedly has been going on all year. What’s truly amazing is no one noticed until the playoffs started. 

Full post as published by Seattle Trademark Lawyer on January 10, 2011 (boomark / email).