New Brewery Trademark Lawsuit in Texas: Alamo Beer Company, LLC v. Old 300 Brewing, LLC (Docket Number 5:14-cv-00285)

On Friday, a new brewery v. brewery lawsuit was filed in the Western District of Texas. This dispute raises interesting issues, and also highlights again the importance of early clearance and registration of your desired brewery name and related materials, including your logo and even the look of your tap handles.

The dispute is between Alamo Beer Company and Texian Brewing Co., docket no. 5:14-cv-00285. Here’s a link to the complaint.

Alamo has been selling beer under the Alamo brand since late 1997. Since then, Alamo has used a silhouette of the Alamo as a part of its logo. Other Alamo-esque and very Texas imagery (stars, cannons) and phrasing (“Remember”) also help form the look and feel of the Alamo logo and trade dress. Alamo never registered its logo, but does have a registration for the word mark ALAMO (Reg. No. 74607465).

Sometime in 2011 or 2012, Texian Brewing began using a logo that features a silhouette of the Alamo. Likewise, the tops of Texian Brewing’s tap handles are carved into the silhouette of the Alamo, and they also feature a cannon, star, and other Texas imagery.

The complaint observes that on May 22, 2013, Alamo Beer Co. contacted Texian about the matter. Evidently, Texian didn’t reply to this first email and the next day, on May 23, 2013, went ahead and filed a trademark application for TEXIAN BREWING CO. along with a design mark for their logo, which again featured the silhouette of the Alamo. Note that in the application’s description of the mark, the brewer made no reference to the Alamo and generically referred to the silhouette as “a black and white design of a stylized roof outline.” This mark registered on January 21, 2014 (Reg. No. 85940608).

It’s unclear whether Alamo was aware of Texian’s trademark filing because Alamo never opposed Texian’s mark when it was published, though Alamo and Texian had been in contact during that time. Perhaps waiting until now was a strategic maneuver. We can’t know. But, the lawsuit does raise interesting issues.

Because Alamo has registered its ALAMO word mark, confusion about the silhouette could stem from that. Consider, for example, if a brewery were called Blue Octagon Brewing Company and another brewery started using blue octagons in its logo and on tap handles. Of course, this silhouette is not as tidy as that example, but for consumers in Texas—currently both breweries’ primary trading territories—that distinctly Alamo silhouette could have that same kind of significance.

We believe Alamo would have a much stronger case, and maybe could have avoided litigation in the first place, if it had registered its logo with the silhouette back when the brewery first started using it. Still, Texian’s registration is not a slam dunk for Texian. If the court finds consumer confusion likely between the two due to the logo, because Alamo is an unregistered senior user (unregistered at least with respect to the silhouette), Alamo technically would have superior rights in its existing trading territory—which sounds like most of Texas. Indeed, in its complaint, Alamo seeks to cancel Texian’s registration, and they have grounds, because technically Texian should have carved out Alamo’s existing trading territory when applying for its trademark. Of course, had Texian properly done so, Texian would have obtained a federal registration to use its Texas-themed logo…just not in most of Texas.

This is messy stuff, made messier because unfortunately the two breweries could not privately resolve this matter. And, though we can’t know for sure, it seems that early trademark clearance and early trademark registration could have prevented this costly dispute. As always, we will be following this lawsuit and will let you know how it progresses.

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Referencing Celebrities in Beer Names and Labels: The Ozzy Dispute

This week, Black Sabbath rocker Ozzy Osbourne sent a cease and desist to a Baltimore-based brewery, Brewer’s Art. The letter involves a belgian strong ale the brewery refers to as Ozzy Ale. Had the “Ozzy” use been limited to the name, the C&D might have been a stretch. Here, however, the beer’s label art features an outstretched fist with O-Z-Z-Y spelled across the knuckles, just like the famous Ozzy’s real-life tattoo. The lettering/packaging is consistent with Sabbath-styled art, and the label also includes artwork of bats, a reference, no doubt, to the rocker’s certain onstage stunt.

We haven’t seen this dispute get picked up with too much commentary, and what commentary is out there tends to focus on potential federal trademark issues. It’s true that if consumers would likely be confused as to whether this beer originates from Ozzy Osbourne or is otherwise endorsed/sponsored by the rocker, there’s a trademark issue here. And, given the label art, the trademark claim has teeth. Had the brewery featured artwork of, say, a Black Lab with a story about their beloved childhood pet “Ozzy,” this sort of confusion claim wouldn’t be as tenable—of course, it would be important to know whether Ozzy-the-rocker holds a federal trademark and, if so, in what categories—if not, whether he has entered the beer or related markets. We can also imagine that Ozzy Osbourne’s C&D included a mention of trademark dilution, contending that his “Ozzy” mark is famous and this use on beer, even if unlikely to cause confusion, would dilute his branding firepower.

Potential Lanham Act claims aside, this is a good chance to mention another sort of right involved here that the C&D no doubt referenced: the Right of Publicity. Famous folks, and even you and I, have a right to exploit our likenesses for commercial advantage. One classic case in this area involves Samsung and Vanna White. In advertisements, Samsung was showing its VCRs (we said the case was classic) in futuristic settings. The ad depicted a robot dressed in a wig, gown, and jewelry specifically selected to resemble Vanna White’s hair and dress, and was posed next to a game board that’s instantly recognizable as the Wheel of Fortune game show set. The problem with the ad is that it wasn’t meant to depict just any letter-turning gal in a dress, it was meant to depict Vanna White; Samsung’s ad impermissibly appropriated her identity—at least enough so that the 9th Circuit overturned an earlier summary judgment entry in Samsung’s favor.

Turning to the Brewer’s Art and Ozzy Osbourne matter, it’s possible that Brewer’s Art genuinely wanted to pay homage to Osbourne and thought Osbourne’s spunky personality befit its fiercely spunky brew. But, good faith aside, the name along with the label art arguably went too far, capitalizing on Osbourne’s fame and/or perceived affiliation to help brand and sell the beer. Hopefully, the two sides can work this one out, because the label art is pretty rad, the beer sounds pretty good, and maybe the dispute’s publicity could be a win for all parties involved.

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Green Brewing Initiatives with Emerging Wastewater Technology

WaterWorld. Yes, there’s that one movie, but the WaterWorld we’re talking about is actually an online resource that reports on global water and wastewater news and technology. The website frequently covers developments in the brewing industry, including legislation affecting water quality standards. And, recently, the site caught our eye with its nice overview of water-related green brewing technologies. The article and site are worth checking out.

Right now, there’s growing interest in technology called membrane filtration. There’s also interest in bioelectric technology, and two California-based breweries—Lagunitas and Bear Republic—have already installed the EcoVolt system that offers up a 25% annual return on investment and generates more than 10% of a brewery’s water requirements with recycled water. Yet, much of the cutting-edge technology the article details is expensive, and may not lead to significant reductions in a brewery’s overall water needs—yet. Still, for those interested in improving their brewing efficiencies and doing the right thing by the environment, it’s worth paying attention to what’s out there, keeping tabs on how the technology progresses and how it’s working for the early adopters. This is especially so for existing and would-be brewers operating in particularly water-stressed regions.

Water, as we all know, is a vital but contentious resource. Mark Twain said it best years ago: “Whiskey is for drinking; water is for fighting over.” And, as states become thirstier, improvements in green brewing technologies are not just good for the conscience—they’re a way to shield your business should dwindling supplies begin to create competing in-state demands.

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Growler Fills in Florida: Them’s Fightin’ Words!

We all know the law can be filled with forehead slappers. Such is the case for growler fills in Florida right now, with a nasty David-meets-Goliath sort of fight spilling over into the legislature, too. What we really see, though, is a form of legislative cronyism at its best (well, worst). Here’s what’s going on.

Right now, it’s absolutely legal to fill gallon-sized containers at Florida breweries (128 ounces). It’s also legal to fill quart-sized containers (aka bullets, which are 32 ounces). However, it’s completely against the law to fill the standard half-gallon growler (64 ounces). That sure makes a lot of sense.

As you might expect, brewers are wanting to get the nonsensical law changed in favor of allowing standard-sized growler fills. Their request seems pretty reasonable, right? Not so fast. Florida’s band of Anheuser-Busch distributors are utterly against it. And, they have the ear of Florida Senate President Don Gaetz (R), who recently stated, “I’m with the beer distributors in my district . . . one of my very best friends is an Anheuser-Busch distributor [ed. note: he’s referring to buddy Lewis Bear] he never talks to me about his business. It’s always about what we are going to do for disabled children, what are we going to do for the arts, what are we going to do for economic development. But this time he’s talking about growlers.” We give you the full quote so you can bask in its weird politician-y turn, and also its weird underlying logic. Brewers can already fill more, and they can already fill less. What’s the huge dang deal?

Evidently, Bear and his band of Anheuser-Busch distributors want to play a game of chess with the container regulation matter. In a demonstration of their magnanimity, they’ve suggested legislation that would (1) allow half-gallon growler fills for the brewers but also (2) ban full-gallon growler fills; (3) prohibit brewers from being able to sell carryout bottles, cans, and kegs; (4) prohibit brewers from having guest taps at the brewery; and (5) prohibit brewers from selling the beers they make in collaboration with other breweries! Thankfully for our Floridian comrades (and certainly Florida consumers, too), this proposed bill never turned into the real thing.

Making this whole matter even more more interesting, MillerCoors distributors are a-okay with changing the law to allow half-gallon growler fills. Notably, too, Anheuser-Busch has emerged as a good guy, distancing themselves from their distributors by saying they’re totally cool with deregulating the container sizes. All this in a state that had just 6 breweries only a handful of years ago (now 50 with 28 more on the way). We hope this tiff leads to a logical result.

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Left Hand Brewing Company’s “Nitro” Trademark Application Meets Opposition

There’s a trademark tussle brewing out in Longmont, Colorado, which is home to both Left Hand Brewing Company and Oskar Blues Brewery. Here’s what happened.

Back in September 2013, Left Hand sought to register “Milk Stout Nitro” and “Nitro” as federal trademarks. (Note that Left Hand disclaimed exclusive rights to the “Milk Stout” portion of “Milk Stout Nitro.”) Both Nitro marks breezed through the early part of the registration process, but met some opposition when they were published. The potential opposer is actually Anheuser-Busch, and they’ve sought out a couple of time extensions to file an opposition to the marks.

For brewers and beer fans (which it doesn’t seem like the trademark examining attorney was exactly), the term Nitro typically signals a beer served via Nitrogen instead of Carbon Dioxide. The Nitrogen, aka Nitro, imparts a smoothness and creaminess that’s popular when serving stout-styled beers, but it’s gaining traction with other styles as well. Enter Oskar Blues, Left Hand’s longtime Longmont neighbor, who applied for a trademark a couple of weeks back for “Old Chub Nitro,” a Nitro version of their popular Scotch Ale.

Oskar Blues plans to release a range of Nitro beers in cans, finally having perfected the Nitro-canning process. Not too long ago, Left Hand emerged as a leader in the Nitro-bottling process and has hit the market with their Milk Stout Nitro as well as their Sawtooth Nitro, an ESB. Evidently, Left Hand and Oskar Blues are cool with each other’s use of the word “Nitro,” but Left Hand’s registration for the plain old “Nitro” mark has some implications. If it registers, Left Hand will have to police the mark to maintain their strong rights in it. Among other drawbacks to the mark, we’ll observe that “Nitro” also seems to pose a strong risk of genericide, going the way of linoleum, cellophone, dry ice, and other used-to-be trademarks.

So, why is Anheuser-Busch in the picture? As we’ve seen in the past, A-B pays attention to all the brew-related trademarks published for opposition, playing “goalie” when it feels the examining attorney let something merely descriptive through. Commentators have observed that Goose Island, now largely owned by A-B, may be interested in exploring the Nitro side of things. However, when asked for comment, A-B has pointed to the widespread use of Nitrogen in association with beer. A-B could give a rip about Guinness, a hugely popular Nitro pour, but their own Boddingtons is definitely distributed in a nitrogen-widget-equipped can.

So, given the arguably descriptive nature of Nitro, and that they don’t want to “halt craft innovation or stop nitro-style beers from being produced or poured,” why might Left Hand be pushing hard for extra rights in simply Nitro? Our best guess is that Milk Stout Nitro is one of their biggest brands, but without Nitro viewed as distinctive, the mark runs of the risk of being purely descriptive, not eligible for registration on the principal register. Their Sawtooth Nitro mark or the Old Chub Nitro from Oskar Blues just don’t run the same risk. Whatever the motivation, we’ll be paying attention to how this one turns out.

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