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Tucked in amongst the bland, beige condo high rises — a smudge on them as surely as they are an affront to the paperwhite sands of the Gulf Coast — there sits a bar that straddles the state line.
But to call it a “bar” is reductive, since the (in)famous Flora-Bama Lounge is a more like a complex, one that includes a liquor store boasting lottery tickets (naturally on the Florida side), a restaurant, a “yacht club,” watersports rentals and the massive bar on the beachfront proper.
On the sleepy offseason Saturday afternoon I stopped in for a visit, my lunchtime Diet Coke from the bayside grill tasted precisely like it came from the business end of a dirty soda gun. My cheeseburger, with its perfectly average food service patty, was better, and the tater tots were no certainly worse. With lunch finished, I crossed the highway to reach the main bar (distinguished from other potent potable stops in the complex as the one not “family friendly”) where I tried the Bushwacker, a signature frozen drink that tasted like a vanilla Frosty with more than a squirt of Kahlua.
(Why would you want a frozen dairy drink in the heat of the summer? Why did I let the bartender pour an extra shot of rum on top? Some questions may not have answers, but at least the second one seemed like a faux pas to refuse.)
While listening to a fine fella pick at his guitar on stage and watching the friendly biker gang to my left, I nursed my drink and stared at the tangled lines of swimsuits and bras hanging from the ceiling. (It was, as promised, not family friendly.) As dive bars go, the Flora-Bama is big and weird and strangely welcoming.
And when I left through the gift shop, it was all too clear:
The Flora-Bama is also a business.
Yes, yes, all bars are businesses, but few are brands in the way that the Flora-Bama has become. The sprawling venue has resulted in songs from artists like Kenny Chesney, garnered its own streaming music channel and inspired multiple books (even a series of romance novels!). In intellectual property law, brands are protected by trademarks, the legal signifier of the source of goods and services in commerce. A trademark, of which the Flora-Bama’s owners have several, not only grants some measure of exclusivity in trade but it also protects consumers — because when you buy something with trust in a distinctive name or logo, you should get what it is you’re expecting to get.
Trademark owners are also expected to take action to protect their marks lest they fall into common and unprotected usage — aspirin, cellophane, escalator, for example, were at one point trademarks but are now unprotected generic terms. (Band-Aid and Velcro, however, are still trademarked, so be careful what you call other “flexible fabric bandages” and “hook and loop fasteners.”)
So when MTV and its then-parent company Viacom sought in 2017 to create and market “Floribama Shore” as one more entry in its reality television portfolio, what was the beach bar supposed to do? Simply let “Flora-Bama”/“Floribama” (thank goodness the law treats similar spellings the same) slide unchallenged into the public vocabulary as a much more awkward descriptor for the Florida Panhandle? Of course not, especially when they have a responsibility to protect their marks.
Thus, after the second season of the show, the bar sued the network in federal court for trademark infringement, only to lose on summary judgment. And on appeal, the 11th Circuit agreed with the lower court’s decision, finding late last year that the network’s use of the term “Floribama” was lawful and struck an appropriate balance between the expressive rights of MTV and the bar’s rights to engage in commerce.
In reaching its conclusion, the court used both an important Second Circuit case and its own precedent from another Alabama trademark dispute. In Rogers v. Grimaldi, a 1989 case from the Second Circuit regarding a trademark dispute between famed actress Ginger Rogers and an Italian filmmaker, the court established a two-part test to weigh intellectual property interests against the inherent First Amendment right in the titles of expressive works; under the Rogers test, the title of an artistic work doesn’t violate the trademarks interests of another party unless (1) the “title has no artistic relevance to the underlying work whatsoever” or (2) “if it has some artistic relevance, unless the title explicitly misleads as to the source of the content of the work.”
The second case the 11th Circuit found to be critical to resolving the Flora-Bama/Floribama dispute was University of Alabama Board of Trustees v. New Life Art, a 2012 case in which the state’s flagship university sued artist Daniel Moore over his use of the Crimson Tide’s uniforms in his line of artwork and other merchandise commemorating memorable moments of football glory. There, the court applied the Rogers test to conclude Moore’s use of the university’s trademarks was protected expression since “the uniforms’ colors and designs are needed for a realistic portrayal of famous scenes from Alabama history” and, under the second prong of the test, there was no evidence Moore ever marketed his unlicensed works as something officially affiliated with UA.
In applying both Rogers and UA Board of Trustees to Flora-Bama/Floribama, the 11th Circuit first noted that the standard for artistic relevance under the Rogers test as applied to titles is that a challenged work must only have a relationship between its substance and its title that is “merely…above zero.” MTV’s television series, the court concluded, met that low bar as it neatly explained the series’ concept: “’Flori,’ refers to Florida and the beach culture the series sought to capture, while the latter part, i.e., “bama,” refers to Alabama and the Southern culture the series sought to capture.” The court also explicitly refuted an argument from the bar that UA Board of Trustees grafted a component of necessity onto the Rogers test — i.e. if Moore had to use Alabama’s uniforms to make his artistic work, then so too must MTV be required to use Floribama almost as some sort of last resort. “It is not our place to decide whether Defendants needed to use ‘Floribama’ in their title,” the court wrote. “It is enough that the title was relevant to the series Defendants sought to produce.”
As to the second part of the Rogers test — whether MTV’s title was misleading regarding the source of the show’s content — the court concluded there was no evidence to show the network proffered the series as being endorsed or sponsored by the bar. In the title alone, the court observed, is both the network’s brand (MTV) and the “Shore” franchise signifier, which MTV had applied to the original “Jersey Shore” and multiple spinoffs. And, as the court explained, any actionable confusion under this prong has to come from the behavior of the defendant and not the result of the defendant’s use, so the bar’s evidence, including survey data and examples of (most likely drunk) Flora-Bama patrons asking where the cast members were (the answer there being Panama City, where the show was filmed), was not helpful to its case.
It’s hard here to cheer for Viacom and MTV, not because they seem like bad actors — from the evidence produced at trial, “Floribama” as a title for their insipid show truly seemed like the best of a bad set of options and producers saw any association with the bar as unwanted — but because they are a corporate money-printing monolith, and I have better things to do with my life than root for them. But given the Flora-Bama’s similar (albeit more local) business success, it doesn’t seem like an aggrieved, hard-luck underdog either.
As the weather turns this spring and summer and the Bushwackers and their rum floaters begin to plop out in earnest from churning dispensers, as bare and unsteady feet still crusted in sand shuffle toward good times to be remembered and forgotten alike, whatever sting may exist from this court loss will fade.
The Flora-Bama — as both a business enterprise and perhaps the world’s quirkiest, friendliest dive bar — will be fine.
