Kendall Jenner's 818 Tequila is facing allegations that it 'blatantly copied' a competitor's branding. Legal experts weigh in.

• Texas-based company Tequila 512 is suing Kendall Jenner's 818 Tequila.
• In its legal complaint, 512 accuses Jenner's brand of trademark infringement among other claims.

On Wednesday, Texas-based tequila brand, Tequila 512, filed a complaint in federal court against supermodel Kendall Jenner's 818 Tequila, claiming trademark infringement, false designation of origin, and unfair competition.

Insider asked legal experts to weigh in on the matter, and some say it's possible that Jenner's tequila company may have to rebrand while others dispute whether 512's case has merit.

In the complaint obtained by Insider, Tequila 512 claims that Jenner's tequila company "simply and blatantly copied the branding" of its product, and argues that 818's use of "a 3-digit brand name with a central 1" that is also "a prominent area code" as well as its "distinctive black lettering inside a vertical yellow rectangle" on the label is evidence of copying.

The Austin-based company accuses Jenner's brand of trying to deceive 512's customers, saying in its complaint that "comparing the two products, customers would easily believe, incorrectly, that the products are related."

Tequila 512 has pointed to apparent similarities between its product and that offered by Jenner's brand before, sharing an Instagram post about the celebrity-owned spirit in May 2021, months after 818 Tequila was launched that February. The post purports to show a message in which someone appears to confuse the two brands. Representatives for 512 Tequila declined to comment when asked about this.

Tequila 512's CEO, Nick Matzorkis, told Insider that before filing its complaint the company had communicated its concerns to 818, providing "an overly generous period of time for them to address this quietly behind the scenes" though no conclusion was reached.

"Any reasonable-minded person can see the obvious likeness between our Tequila 512 blanco bottle that initially hit the market in 2016 and the 818 Tequila blanco bottle released in 2021," Matzorkis told Insider, adding that he believes the company "will objectively and factually prove in a court of law how this unfolded and how this blatant Tequila 512 brand identity rip-off scheme came to be."

Representatives for 818 Tequila did not immediately respond to Insider's request for comment.

Legal experts are split, but some say the case could result in a rebrand for 818 Tequila

Insider spoke with four legal professionals who specialize in trademarks and copyright.

While they all agreed that more information would be needed in order to have a fully-formed opinion on the outcome of this case, they also recognized that there's some degree of possibility that Jenner could end up having to rebrand 818 as a result of settling or losing the case, though it's not necessarily likely.

"Trademark law isn't about copying," Christopher Jon Sprigman, a professor at NYU Law, told Insider. "Trademark law is about consumer confusion."

Barbara Mandell, a partner at Fishman Stewart Intellectual Property, said that when examining the two components of trademark infringement, the plaintiff would have to prove that they have priority of use, and that there's a likelihood that consumers would confuse the products in question.

"Here, clearly Tequila 512 has priority," she said, referencing the fact that there are trademark rights on "512" date back to 2008 while Jenner's brand's "818" rights date back to 2019, according to the United States Patent and Trademark Office.

A post shared by 818 Tequila (@drink818)

However, Mandell agrees with Sprigman that confusion is important in a trademark law case, and said 512 would have to prove that customers are confused by the brands either through examples of existing confusion or a survey examining public opinion from a sample crowd.

Mandell walked through possible arguments for proving confusion, but said it's all circumstantial and would depend on further evidence. If a jury finds 818 in violation of trademark law, consequences could be that the California-named label would have to rebrand itself in some way.

Dmitry Lapin of Danchuk Law agreed that there's a possibility that 818 will have to either rebrand or pull from shelves completely since 512 is asking for 818 to stop using the marks in question. But it's not clear cut.

A post shared by 818 Tequila (@drink818)

"My feeling about this is Tequila 512 has a terrible case here," Jeremy Peter Green Eche, founder and managing attorney at JPG Legal, told Insider. "I think it's pretty absurd for them to act like nobody else can use a three-digit number for a tequila brand and also that a yellow background with black text is somehow something they can stop other people from using when everything else is totally different."

He said that in his opinion the font and the shape of the label's background and the bottle are different across brands.

Sprigman added that there could also be an argument over the color of the label on 818 Tequila's blanco bottle — 818 sells three tequilas: a blanco, reposado, and añejo — which he says appears to be green rather than yellow. "If the bottle is green, we gotta start asking some questions," he said, regarding the accuracy of the bottle's depiction in the law suit.

While Eche doesn't believe there is a likelihood of confusion between the two brands, he said it's possible a court may disagree with him.