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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