-Martha Engel, Attorney

The Craft Brewers Conference is an impressive affair. Between the number of brewers I’ve met from across the country as well as internationally, and the colossal trade show, the breadth and scope of the industry is probably most visible from this event.  Set in D.C. this year, it’s surrounded by important historical places and legal landmarks. Like George here.

Throughout the show and its associated events, there are opportunities to sample beers  – including some not made in DC or without distribution in this area but available in other markets.  Without getting too far into the complicated web of laws that govern how alcohol gets from the brewer to the consumer, distribution is challenging and a long term strategic process.  For a trademark to achieve registration though, the applicant must have use in commerce and use in interstate commerce.  So I think George Washington wanted to ask a question on many Brewers minds – are these samples a sufficient use in interstate commerce?

When the brewer has used in commerce – sold or shipped product from its brewery to a purchaser – that can establish the “use in commerce” even if the use is only within the state.  It has to be a product that a consumer can buy, not some token use.  Use in interstate commerce is in addition to that use. It has to have a sale or shipment across state lines – or otherwise federally regulated under the Supreme Court’s expansive interpretation of the Commerce clause. To have a sample at an event like this or at a beer fest, a keg is typically transported across state lines, which can support use in interstate commerce.

So yes it seems that these uses would meet that second standard, but it is important to document that transfer and also document how the consumer encountered the product. Many I saw this week barely had a name of the brewer clearly recognizable, let alone the beer name. They also were being served by convention center staff – an often unavoidable decoupling of a consumer’s experience with the brand.