Texas A&M Goes After Washington Brewery Over 12th Man Trademark

from the and-the-crowd-goes-wild dept

For some reason that I can’t explain, the convergence of alcohol and trademark disputes seems to be a thing. Previously, we’ve seen how disputes over labels and area codes in beer brands have resulted in this sort of thing. More recently, we’ve also seen how these trademark disputes can result in new label artwork and brew names from sarcastic and creative breweries.

That last example was top of mind for me when I read about what seems to me to be a silly cease and desist letter sent to a small brewery in Washington State by Texas A&M over a brew they had made using the term “the twelfth man.”

A family-owned brewery in Bothell, Wash. planned to sell “12th Man Skittles IPA” on Superbowl weekend but canceled the plans after receiving a cease-and-desist notice from A&M, which has trademarked the phrase. A&M lawyers actively police unlicensed uses of the trademark, which have increased with the Seahawks’ run to the Super Bowl. Bothell is a town of about 34,000 located about 20 miles northeast of Seattle. The brewery is operated by Jim Jamison and his family, who have full-time jobs but run the business on the side from property in a residential area. It’s only open on Saturdays from noon to 4 p.m.

The 12th Man Skittles IPA was thought up somewhat last minute by Jamison as a way to celebrate the Seahawks’ 12th man tradition and star running back Marshawn Lynch’s affinity for the candy. He brewed 5.6 gallons of the beer, which isn’t even a full batch, with home brew equipment.

For those of you that aren’t sports fans out there, the 12th man is a reference to the crowd in Seattle, who are so unbelievably loud as to both confuse the opposing team’s offense and generate enough decibels to wind up on the Richter scale. What’s strange in this case is that a brewery ostensibly isn’t in the same business as a public university. So, while A&M indeed has a trademark and a long tradition on the concept of “the 12th man”, it’s unclear to this writer how these two entities are competing in commerce. Add to that the fact that it’s quite unlikely that any morons in any stages of hurry would be confused enough to think that a tiny amount of beer in Washington had something to do with a college over two thousand miles away, and the common retorts offered by A&M don’t seem to hold much water.

Shane Hinckley, A&M’s interim vice president for marketing and communications, said A&M has employees who actively watch for trademark violations but that he didn’t remember how the small brewery got on the giant university’s radar. He said A&M officials have been more actively watching for trademark infringements in the last few weeks.

“The reason we send out cease-and-desist letters is to, No. 1, show we are protecting our brand, which is important in the eyes of trademark law,” Hinckley said. “And No. 2 is that infringing use has the potential to dilute our brand.”

Fine, but those provisions in trademark law don’t really apply if there isn’t an element of brand confusion in the same arena of commerce. What might otherwise be the legitimate proactive protection of a trademark is instead just behaving dickishly. But, alas, Jamison didn’t have the resources or the will to fight this nonsense, so he relented, calling his brew by another name. A wonderfully appropriate name.

The beer will still be on tap Saturday, just under a different name — “Cease & Desist IPA.” Jamison said he received no other legal notices but dropped “Skittles” from the name just to be safe.

“We’re going to serve it in 12-ounce glasses, going with a ’12th man’ theme, but we won’t call it the 12th man pour,” Jamison said. Jamison is not upset about A&M’s legal action and said that more than anything he is amused. He said A&M’s lawyers were really nice and were satisfied with his actions to comply with their demands.

I don’t know if I’ve ever heard of a business model centered around gaining notoriety via cease and desist notices, but Jamison appears to be Streisanding his way to success.

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Companies: texas a&m

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Comments on “Texas A&M Goes After Washington Brewery Over 12th Man Trademark”

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MadMatt (profile) says:

Thant is not cricket.

As the cricket fraternity will espouse the 12th man has been in regular use in that game for longer than the colonial A & M has existed. So I suggest that they forget their precarious trademark. I am no trade mark layer, but letting these guys have that is like letting Microsoft trade mark windows. It is a big world, and it is time the US trademark office expanded it’s scope, and stopped these stupid trade marking of pre existing terms.

Anonymous Coward says:

Re: Re: Re:

I’m far from an A&M fan. (Actually, I don’t like the school at all for other reasons that are beyond the scope of this discussion.) But I have to say, you are so beyond wrong about the comparison of Seahawks fans to A&M fans that it is beyond comprehension. You obviously have never witnessed the borderline religious nature of A&M fans support for the school and their sports teams. It is often to the point of stupidity. I also invite you to take a walk around the campus at College Station and make that sort of claim.

scotts13 (profile) says:

I don't follow baseball

…or soccer, or whatever silly sport this is about, but I’m pretty sure there have been numbers of men between eleven and thirteen in the past. How could they get a trademark on “12th man” EXCEPT as specifically refers to sports events?

If they were worried about protecting their trademark, they could have licensed it to the guy for a token dollar; if they’re worried about dilution, they’re just wrong.

Anonymous Coward says:

Re: Re:

What do T-shirts have to do with football or any product that can have a label slapped on it for that matter? The trademark is not about the team so much as it is marketing products with the team’s brand on it to fans of the team. Sure A&M doesn’t market a beer with their brand. But they could if they wanted to. That’s the point.

Internet Zen Master (profile) says:

"incontestable status"

Apparently Texas A&M has, thanks to the ‘wisdom’ of the USPTO, trademarks with ‘incontestable status’ over the phrases ’12th Man’ and ‘Home of the 12th Man’.

As far as general IP law goes I’ve got a better understanding of copyrights/patents than I do when it comes to the little details around trademark cases, so could someone explain to me how the hell someone could get an ‘incontestable status’ over the trademark in the first place?

As for how they’re competing in commerce, I assume it’s because Texas A&M has it’s own college football team, and doesn’t want to get their fans confused with… Seattle’s 12th Man? Yeah, that’s the only logical explanation I can come up with.

Of course, that also assumes IP law usually follows logic/common sense…

Anonymous Coward says:

Re: "incontestable status"

“As for how they’re competing in commerce, I assume it’s because Texas A&M has it’s own college football team, and doesn’t want to get their fans confused with… Seattle’s 12th Man? Yeah, that’s the only logical explanation I can come up with.”

Apparently the issue with the Seahawks has been settled with a license. However, the brewery isn’t part of that license deal.

MadMatt (profile) says:

Hey Mike, Do you really think I care if it is a military school or a Zoo. They have trademarks on phrases in common usage, they are not entitled to them and like the Military they so fondly emulate they use bully boy tactics to try and maintains their silly and illegal trademarks. So there you go. I consider their trademarks an abuse of a sadly abused system. Let them litigate to their hearts content.

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