You know that beer that you would drink in a basement, but now that you acknowledge that you are actually an adult, you would not be caught dead buying in a liquor store or requesting at a bar or restaurant? We’ve all got one. Having spent my college drinking days in “the good land”, my friends were partial to the locally brewed Miller products like Milwaukee Best and Red Dog. Being a little closer to St. Louis, the Hawkeyes on the DuetsBlog may be fonder of Anheuser-Busch’s Natural Light (although perhaps that’s just coaches at Iowa State). Maybe you have a soft spot for Keystone Light, Busch Light, or Old Milwaukee.
Whatever your choice for “Friday Forties at Four,” these beers have some things in common. They’re typically available in a 30-pack of cans for about $6.89. They are best used for drinking games, like what we called “Circle of Death.” They all taste like river water. They all have their own disparaging nicknames. The Beast. Natty Light.
Bottom line is that, although they might be bottom shelf, they have all applied for trademark protection – even for these nicknames, surprisingly. Anheuser-Busch actually owns a registration for NATTY LIGHT for “beer” and its most recent specimen is shown below:
Based only on the specimens available in the Trademark Office’s records and my vast knowledge of beers, it appears that the NATTY LIGHT mark has never been used on the packaging or on the beer cans themselves, but only as a tagline of sorts on promotional display items like posters or table tents. This is a great example of when marketers who understand their client’s customers so well and work in connection with a thoughtful IP strategy can help expand a company’s rights to increase their brand’s value.
News recently broke about another brewing brewery brawl regarding trademarks, this time between so-called “trademark bully” Anheuser-Busch and Natty Greene’s Brewing Company over its NATTY GREENE’S mark.
Anheuser-Busch has opposed registration of NATTY GREENE’S on grounds of dilution and a likelihood of confusion with its NATTY family of marks, also owning NATTY DADDY and FATTY NATTY. For your Thursday fun, here’s the specimen that was filed for the FATTY NATTY mark (if you can’t read it, the copy says “wrap your hands around a fatty”).
When examining the NATTY GREENE’S application, the USPTO found no conflicting marks that would bar registration on the basis of a likelihood of confusion. The USPTO often takes the position that where marks are highly similar, craft beers and something in a different aisle at the liquor store, like vodka, are sufficiently related to support a likelihood of confusion as to source of the goods. I often find this position hard to swallow given the nature of the alcohol purchasing experience; breweries are different than distilleries and different than wineries, and consumers are accustomed to these goods coming from other sources. But with wickedly awesome bourbon barrel aged beers coming onto the scene and blurring the lines on this a bit, that argument is getting harder to win.
Getting off my soapbox on the USPTO’s policy about relatedness of alcoholic beverages, the applied-for goods for NATTY GREENE’S (“beer”) are identical to the goods of the NATTY- family of registrations. But are the goods really identical in the context of consumer confusion? Do you think there’s any chance of consumers confusing the brews of Natty Greene’s Brewing Company with a product branded as Natural Light but often referred to as “Natty Light”? And even more so, confusion in a way that dilutes the watered down beer’s NATTY LIGHT brand?
We talk a lot about the difference between the right to use a mark versus the right to register it, as well as maintaining scope of rights. The scope of the NATTY- family registrations are broadly “beer” – even if that liquid does not taste anything like beer to you anymore. Given that Anheuser-Busch’s notice of opposition was sparse to say the least, we’re hoping this soon reaches an amicable resolution that would allow Natty Greene’s Brewing Co. to use and maybe even obtain a registration.