In April, news broke that two iconic alcohol brands were joining forces to create a remarkable new beer: Jim Beam Budweiser Copper Lager. Fruit of the joint labor is now available for consumption:

The unique combination doesn’t appear destined to fall flat, as in the early days since launch, it seems to be attracting even self-professed “craft beer snobs,” which is probably the point for Bud.

When iconic brands come together in a co-branding arrangement, it’s interesting to note visual manifestations of the joint trademark use guidelines, a peek into who’s steering the Clydesdales.

Not surprisingly, the reigns of the Clydesdales appear most closely held by Budweiser, as the Copper Lager is beer, not whiskey, and BUDWEISER is the largest wording on the packaging.

That said, the Jim Beam brand name and logo does adorn the six pack carton’s front face with top line prominence, suggesting the brand power it brings to the party – liquid version of Intel Inside?

Figuratively though, not literally, as the Copper Lager isn’t a boilermaker beer cocktail, instead the Jim Beam name and logo indicates aging of the lager on genuine Jim Beam bourbon barrel staves.

One of the things the packaging does well, from a trademark perspective, is keeping the visual identities of the brands separate and distinct, as they appear together in this joint branding effort.

It’s really not a good idea, from a trademark perspective, to mix and blend the combined brands into a single new visual identity, as doing so raises questions of ownership and how to untangle.

So, the packaging does a nice job of keeping each sides trademark elements physically separable while communicating why Budweiser invited Jim Beam to team up for this Copper Lager party.

The trademark filings tell stories too. The only filings currently on the USPTO database that contain the terms Copper and Lager in a mark are owned by Budweiser parent, Anheuser-Busch.

So, Anheuser-Busch views the Copper Lager name to be part of the Budweiser Copper Lager and Budweiser Reserve Copper Lager trademarks, but it disclaims exclusive rights in Copper Lager.

What we don’t know (yet) from the disclaimers, is whether Copper Lager is descriptive (capable of being owned as a trademark element), or generic (you know, meaning zero trademark rights).

If Copper Lager is not a category of beer (i.e., generic and incapable of trademark status), and instead descriptive, since this isn’t Anheuser-Busch’s first such rodeo: acquired distinctiveness?

Either way, this joint effort does appear to be Jim Beam’s first rodeo when it comes to beer, as evidenced by the intent-to-use Jim Beam trademark application it filed in April 2018 for beer.

Thankfully these brand owners are sophisticated enough not to combine Jim Beam and Budweiser into a single trademark filing, sadly I’ve seen commingling before, and it isn’t much fun to unwind.

What do you think, is this joint effort a remarkable one? Is it likely to last, stand the test of time?

–Sharon Armstrong, Attorney

Last Friday, a federal court in Kentucky ruled that Fortune Brands, the maker of Maker’s Mark bourbon, enjoys exclusive rights in the dripping wax seal that adorns each bottle of the spirit. (You can read about the case in earlier stages in Dan’s post, here.). Fortune had sued Diageo, another beverage giant and maker of Casa Cuervo Reserva tequila, which also uses a dripping wax seal on its bottles, as shown here:

 

    

Now, legend has it that each Maker’s Mark employee on dipping duty has a different dipping style, such that the trained eye (or bourbon aficionado) can tell which bottle has been dipped by which dipper, based on the way the wax drips down a bottle’s neck. Indeed, due to the fact that the dipping process is not mechanized, no two bottles are alike.

In general, the Trademark Office will not allow registration of more than one mark. TMEP 807.01. The Trademark Office also will not allow registration of what it cleverly calls “phantom” elements in marks – that is, a word, alpha-numeric designation, or other component that is subject to change. TMEP 1214. The reason is to prevent applicants from obtaining the benefits of registration for multiple marks under the guise of one mark. (That would be like having your Manhattan and drinking it too.)

Nonetheless, Maker’s Mark owns a registration for its dripping wax seal; the mark description is “The mark consists of a wax-like coating covering the cap of the bottle and trickling down the neck of the bottle in a freeform irregular pattern” (emphasis added). As a bourbon-drinker myself, I think it’s more than reasonable that consumers associate a dripping wax seal with Maker’s Mark. But given the irregularity of Maker’s Mark’s mark, and the state of the Trademark Rules, should Maker’s Mark have obtained a registration? What do you think?