While most people aren’t drinking straight liquor for breakfast, even if you did start your day will a long boozing session, you could probably still tell the difference between gin and whiskey. But when it comes to its Breakfast Gin, the Illinois-based FEW Spirits distillery doesn’t want to take any chances. The brand, which launched its Earl Grey tea-flavored gin back in 2011, has recently filed a lawsuit against the Michigan-based Gray Skies Distillery, arguing that their new Breakfast Rye whiskey infringes on FEW’s “breakfast” trademark. The battle over breakfast liquors has begun.

At issue in the federal lawsuit is to what extent the word breakfast can be trademarked, especially when applying to two different types of spirits. According to MLive, FEW’s lawyer argues, “(Gray Skies Distillery) has deliberately and willfully used the BREAKFAST RYE mark to trade upon FEW's widespread and hard-earned goodwill in its BREAKFAST GIN distilled spirits, as well as to confuse consumers as to the origin and sponsorship of (Gray Skies') distilled spirits.” 

In essence, FEW is suggesting that “Breakfast” could be seen as an entire line of spirits, and Breakfast Rye could theoretically confuse consumers into thinking the new liquor is an extension of that brand.

However, Gray Skies’ attorney, G. Thomas Williams, argued that the word breakfast is a common descriptive term in the beer and spirits industry, used to describe the kind of ingredients or flavors inherent to a product. In the case of Breakfast Rye, the whiskey has been finished in maple syrup barrels, which reportedly led one taster to comment that the booze “smells like breakfast”—thus explaining the name.

“The whole concept of trademark law is to protect consumers from confusion so that they don’t buy one product thinking it’s from one source and it’s actually from somewhere else,” Williams told MiBiz. “When we look at this case, we don’t see that there’s a likelihood of confusion. When you look at the bottles, they’re totally different. When you look at the labels, they’re totally different…. These are craft liquors. I’m pretty sure the consumers are discriminating and they’re not going to get mixed up if you hand them a glass of gin and they asked for a glass of whiskey.”

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Despite FEW’s request for an injunction, Gray Skies—which has not filed a response to the lawsuit but has been adamant in the press about fighting it—says it will release its Breakfast Rye as planned next week, just in time for the holiday gift buying season. “It's unfortunate they have to deal with this right now,” said Williams. “They've got a pretty cool brand, a pretty cool product.” And everyone knows a fight over Breakfast can ruin your entire day.