|Another A-B Dispute
by Joseph Pallison
Another day, another trademark dispute in the beer industry. The number of conflicts has
reached epidemic proportions recently. That understandable considering the fact that it's hard
to over estimate the importance of trademark in a crowded marketplace where strong brand
and product identity greatly affects sales potential. A trademark or service is defined as “any
word, name, symbol, device, or any combination, used or intended to be used to identify and
distinguish the goods/services of one seller or provider from those of others, and to indicate
the source of the goods/services,” according to the United States Patent and Trademark
Office. These marks allow for quick and effective consumer identification and association,
which is why consumer confusion lies at the heart of any trademark dispute.
The craft brewery industry has flourished in the United States. According to Brewers
Association, well over 2,500 breweries are operating in the country up from 2,000 in 2011.
Due to this increasingly crowded marketplace, trademark protection has arisen as a key
concern for industry players to separate one’s product from the crowd. Additionally, the
unique nature of the craft beer industry has additional implications in these types of disputes.
To a large degree, the demand for craft beer is influenced by its perception as a mom-and-pop
endeavor. Craft consumers generally see litigation as a tool of “big business”.
The most recent case concerns a North Carolina craft brewer who is seeking to trademark its
name, Natty Greene’s. They are facing opposition from Anheuser-Busch, maker of Natural
Light beer. It began when the Greensboro, N.C.-based Natty Greene’s Brewing Co. filed an
application for a trademark of the phrase “Natty Greene’s” with the U.S. Patent and Trademark
Office last August. In its application, the craft brewer said it’s used the phrase in commerce for
a decade citing the fact that .Natty Greene’s is named for Nathanael Greene, a Revolutionary
War general for whom dozens of U.S. cities and counties have been named.
Natty Greene’s has grown annual production to 17,000 barrels and recently started shipping
its beer to parts of South Carolina and Virginia. It was that growth outside its state borders that
prompted the trademark application for the company’s name, Earlier this year, Natty Greene’s
successfully trademarked its beers, including Buckshot Amber Ale and Southern
Pale Ale. But now St. Louis-based A-B, the North American headquarters for A-B InBev,
filed an opposition to those trademarks as is their legal right.
A-B introduced Natural Light beer to the market in 1977, making it the brewer’s first reduced-
calorie light beer. After the launch, A-B trademarked the phrases “Natty Light,” “Fatty Natty”
and “Natty Daddy.” A-B also sells Natural Ice beer. Since at least 1998, and well prior to the
filing date of the Natty Greene's application, (A-B) had established a family of Natty-formative
marks used in connection with beer and has “sold millions of dollars’ worth of beer under the
Natty marks. A-B also said they have spent millions of dollars advertising and promoting
its products under these trademarks. A-B spokesman Adam Warrington said in a statement
that it’s routine for companies to oppose trademark filings to protect their intellectual property
and stressed that its opposition only relates to the trademark, not Natty Greene’s selling beer.
A-B has continually stressed that their trademark opposition concerns only an applicant’s right
to register a mark based on their established right in NATTY-related trademarks claiming that
Natty Light is a well-known national brand that they have invested in for more than 15 years.
Kayne Fisher, founder of Natty Green's said he’ll continue to seek the trademark despite the
power and financial resources of A-B. “I feel it’s unfounded, that it’s a nuisance filing,”
Fisher said. “We’re a blip on the radar to them, and I don’t think there’s any confusion between
us and Natty Light.”
Consider that, just as you can’t claim extra-special rights to descriptive words like ale, lager,
rauchbier, IPA, etc., InBev’s TM can’t claim exclusive sorts of rights in the word “Light.”
Everyone else is free to use the word “Light,” so the thrust of the “Natty Light” trademark, what
really matters, is that “Natty” portion. You could think of it as mostly a trademark for “Natty.”
This makes sense. If the trademark was for “Natty Ale,” the part that you’d expect to resonate
with consumers would, again, really fall on the “Natty” portion of the mark. We all know what the
“Ale” or “Light” signifies, and it doesn’t tell us anything about the source of the product.
So, keep in mind that if you owned and paid for a trademark with a dominant portion of “Natty,”
you’d have an affirmative duty to look out for conflicting uses. Otherwise, you can lose the
rights you paid to get something that Anheuser-Busch InBev is very awary of.
Even though “Natty Greene’s” is a name that tips its hat to Greensboro, NC’s namesake hero
General Nathanael Greene, not all consumers outside the NC region are going to know that. If
someone heard “Natty Greene’s” in a commercial, it might not sound much different from other
sort of “Natty + descriptive word” marks such as “Natty Blue” or “Natty Red.” Just hearing a list
of beers on tap, consumers might think that “Natty Greene’s” came from the same source that
brought them “Natty.” And, when you get a nationwide federal trademark, you’re hoping to
protect yourself from potentially confusingly similar uses.
What if the applied-for TM wasn’t “Natty Greene’s” but instead “General Natty Greene’s”?
There’s still the same word overlapping, but when you read it or if you say it, there’s way less
weight on “Natty.” The emphasis is more balanced, and InBev would have a much harder road
to say it was confusingly similar. In the existing application, the apostrophe does help, but not
in quite as dominant of a way. Making it more obvious with just two more letters—”Mr. Natty
Greene’s”—could arguably be enough to signal to consumers that this is a different source
than the origin of that other barely-yellow stuff.
At this point the dispute continues as the government weights the issues. However if you're
interested in my opinion I do have to admit that legally it seems A-B position has some merit. .
.I have way too many memories of Natty nights in college to think of anything but the A-B
product when I see that name. However, as a craft beer devotee I've come to realize that A-B
produces beverages that really aren't "beer" so they really don't have a case.
Now, what's your verdict?