Who Owns The Word "Nitro'?
                                              by Jim Murray


Would you like to be the proud owner of the word "nitro"?  Well several breweries do
and they have the attorney bills to prove it.  Left Hand Brewing has just filed a
trademark application on the term “Nitro” – shorthand for the process of carbonating
beer with nitrogen – in order to protect the Nitro series brand name that the brewery
has built over the years.  In fact, the word “Nitro” is boldly printed on the bottles of
several Left Hand’s brews.  

The action by Left Hand had immediate consequences as both Anheuser-Busch
InBev and Boston Beer Company responded by filing their own motions with the
U.S. Patent and Trademark Office to block Left Hand’s effort

And then yet another player entered the fray.   Oskar Blues announced it was going  
to release a nitrogenated version of Old Chub and would feature the word "Nitro" on
the can.  But they didn't stop there.  Oskar Blues, in an effort to increase their line of
nitro offerings filed a claim for the term “G’Knightro”. That beer will make Oskar
Blues the first U.S. brewery to put a nitrogenated beer in a can.

Although Left Hand’s current trademark application was filed recently, its effort to
trademark “Nitro” started years ago when they first sought the mark for beer.  At that
time they discovered the word already belonged to the owner of Steamworks Brewing
Company in Vancouver, B.C.  Steamworks was itself no stranger to trademark  
controversy since it had done battle to secure the rights to the term “Cascadia.”
Left Hand then challenged Steamworks over "Nitro" spending large sums on  
attorneys and court fees.  When the dust settled Steamworks gave up the trademark
and Left Hand began using it on their beer.

Left Hand claims they deserve the trademark because of their significant investments
in both technology and people that led to their successful innovation of nitrogenated
beers.   If they win, Left Hand will be able to legally send cease-and-desist letters to
other breweries using the term arguing that its use might cause confusion with Left
Hand products.  Interestingly, trademark holders are required to not just use their
marks but police them, and going after some offenders but not others could result in
a trademark being abandoned.

Left Hand says that it first used “Nitro” commercially back in September 2011 when
bottled Milk Stout Nitro was introduced before the Great American Beer Festival. At
that point the brewery filed for a trademark on Milk Stout Nitro, but not the individual
word "nitro". Since then, Left Hand has introduced two other bottled nitro beers.  
They claim that since Nitro beers use nitrogen in the carbonation process, they are
smoother and creamier than those carbonated exclusively with carbon dioxide.  This
extra smoothness they say are distinctive features associated with the Left Hand
brand.

One key to the fate of Left Hand’s application will be whether “Nitro” alone qualifies
for a mark. The government can reject marks that are “merely descriptive,” meaning
a term describing “an ingredient, quality, characteristic, function, feature, purpose or
use of the specified goods or services,” (Trademark Manual of Examining
Procedures.)

How does Anheuser-Busch’ fit into all of this?  Left Hand released a statement saying
its involvement is “a big question mark. They have more money than we do. Whether
they have a legal basis to challenge it … Maybe they’re working to develop one.”
A-B fired back saying:  “As a brewer, we have produced our own nitrogenated beers
and, like many other brewers, large and small, we need to maintain the ability to
identify them to consumers. We may have no choice but to formally opposed the
trademark application.”  At least one brewery in the A-B porfolio – Goose Island of
Chicago – produces nitro beers served on draft.

And the suits go on with on final solution expected soon.  All I can say is I'm off to the
trademark office for approval of my ownership fo the wor?''beer>






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