BrewDog's Trademark Application For 'Elvis Juice' Brew Blocked By The Elvis Presley Estate

from the ain't-nothin'-but-a-brewdog dept

One point I fear doesn’t get made enough when it comes to trademark law is that trademarks ought to be both unique and specific in order to fulfill the law’s purpose of keeping the public from being confused as to the origins of goods and services. There’s a level of nuance severely lacking in the way trademarks are both granted and enforced such that the law is used far less for the benefit of the public than it is a revenue generator for those who would lock up common names and words. A perfect example of this would be the trademark application for “Elvis Juice” by the brewery BrewDog being blocked by the Elvis Presley Estate.

Now, the last time we wrote about BrewDog, it was having its own issues with trademark enforcement. A pub in Birmingham had received a notice from the brewery’s lawyers that it’s planned name, The Lone Wolf, infringed on a spirit of the same name created by BrewDog. After the public backlash that ensued, BrewDog quite quickly backed off, both allowing the pub to keep its name while also publicly promising to leash the lawyers and only use them when truly warranted. This time, the shoe is on the other foot, with the Elvis Presley Estate blocking BrewDog’s trademark application for “Elvis Juice”, claiming that the public would associate the use of that somewhat common first name with the long-dead singer. The hearing officer for the UK Intellectual Property Office somehow agreed with this line of reasoning.

Last month the UK Intellectual Property Office found in EPE’s favour, with hearing officer Oliver Morris saying that “the average consumer will assume that the brand Elvis Juice is from the same or economically linked source as the brand Elvis”.

Noting that “the opponent has been successful”, Mr Morris refused to register the marks and ordered BrewDog to pay EPE £1,500 as a contribution towards its costs.

When this trouble first began, two of the creators of BrewDog actually went out and went through the legal process of changing their names to Elvis, attempting to make the point that it’s a common enough first name that nobody should associate it with a single famous person for all alcohol products everywhere. The brewery has a reputation for fighting these kinds of fights, so it can appeal the rejection, and hopefully will. After all, the trade dress for the Elvis Juice brand has absolutely nothing to do with Elvis Presley.

Anyone looking at that can of beer and thinking of a 1950’s rock star isn’t so much confused as potentially suffering from brain damage. To my original point, the common name “Elvis” ought to not be trademarked on its own in the first place, as that single common name does nothing to indicate any branding or origin on its own. “Elvis Juice” is unique and creative. “Elvis Presley” is an identifiable source name or phrase. But “Elvis” all on its own? That’s just a name.

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Companies: brewdog

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Comments on “BrewDog's Trademark Application For 'Elvis Juice' Brew Blocked By The Elvis Presley Estate”

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Wendy Cockcroft (user link) says:

Re: Re:

You may find that was ceded to Mike as a term of employment. Mind you, Mike keeps his blog as open as possible and encourages re-blogging, etc. No license required, so it’s a moot point.

Meanwhile, Mr. David Slater has belatedly discovered that fighting against fair use and the public domain can leave one broke. I feel sorry for him but hopefully he’ll drop it now.

Anonymous Coward says:

Re: Re:

i think that many / most people UNDER the age of 25 have almost never heard of Elvis Presley except probably in passing as a reference in various History classes.

using that same logic it would be possible to trademark the name of Abraham Lincoln, Charles Darwin, Christopher Columbus, Leonardo da Vinci, Cleopatra or Plato.

Unfortunately the USPTO has done exactly that with many historical names 🙁

TimothyAWiseman (profile) says:

Re: Re: Re:

I doubt that. AT least if you live in Nevada, there are Flying Elvi performing and a Cirque Du Soleil tribute among many, many other mentions of him. I think most of the public, at least in my region would associate the word Elvis initially with Elvis Presley unless there were something else to distinguish it.

Bruce C. says:

Re: Knowing people named Elvis...

I’ve actually known a couple of them. Not as many as the other Bruce’s in my life, but they still exist. Speaking of which, I wonder if the future “Bruce Springsteen estate” will be as anal about the name “Bruce” in trademarks as the Elvis estate has proven. Maybe BrewDog should try trademarking “Bruce Juice” instead. The rhyme is probably too “twee” for them though…

Daydream says:

>But “Elvis” all on its own? That’s just a name.

I dunno, the name ‘Elvis’ is just uncommon enough and famous enough that I immediately associate it with Presley.

Isn’t that part of the point of trademarks, anyway? So that when people see names like Pepsi or Walmart or Techdirt, they immediately know what it means?
I mean, sure, Pepsi is only a soft drink, but you’d probably have a trademark dispute somewhere down the line if you started offering Pepsi Boat Tours.

Also, something something semiotics something nobody will name their beer ‘Adolf Juice’ with prior connotations like that.

PaulT (profile) says:

Re: Re:

There have been numerous issues over the years where someone has tried trademarking something with their given birth name, but have had issues because some corporation have interests in a slightly more famous use of the name.

There has to be a line, and in this case I think that “Elvis is a given name that just happened to be the given name of someone really famous” isn’t a good enough reason to reject the trademark outright.

“I dunno, the name ‘Elvis’ is just uncommon enough and famous enough that I immediately associate it with Presley.”

Which is fine, but it should not preclude other Elvises from setting up their own brands. If Elvis Costello wants to set up ome branded product, the Presley estate shouldn’t be able to shut him down just because people think of their guy first. OK, maybe you’ll say that he adopted that name, but there are other notable guys with that name –

“Isn’t that part of the point of trademarks, anyway? So that when people see names like Pepsi or Walmart or Techdirt, they immediately know what it means?”

Not exactly. It’s to prevent customer confusion. So, I can’t make a soft drink called Pepsi Root Beer, not simply because customers will just think of the other brand, but because customers may be confused and buy my drink when they actually meant to buy the cola. Setting up a boat tour company with that name should be allowed as it’s in an unrelated industry (though this is fraught with its own issues, and is less likely to work in that example as Pepsi is a made up word rather than a name or dictionary word).

Ben Ketteridge (profile) says:

Why choose Elvis in the first place?

I’m very firmly on the fence on this one. Perhaps I’m just old enough (mid 40s) to have a very firm association with Elvis being Elvis Presley. And Elvis Costello being someone who chose the name because of the association with The King. (not that I’m particularly a fan of either of them, but that’s not really relevant).

So, why did BrewDog think that Elvis Juice was in any way associated with a drink that’s a pale ale flavoured with grapefruit? Did Mr Presley have a thing for such flavours? Or IPAs – I really doubt this one!

I know brand names don’t have to have a reason, but given the strength of the association between ‘Elvis’ and ‘Elvis Presley’ in common culture. It seems a strange choice if you weren’t looking to hook into that association.

Yes, I know Elvis is a good old Welsh name, and there are a number of other Elvis’s around, but come on…?

Anonymous Coward says:

Re: Why choose Elvis in the first place?

Well, they had to choose some name for it. You’re old enough to associate Elvis as the artist people in Las Vegas impersonate for a living. Their target demographic have probably never heard one of his songs in their life.

Also, Elvis used to eat peanut butter and bacon sandwiches… something tells me he probably would have enjoyed a nice juicy IPA.

Anonymous Coward says:

Brew Dog are idiots. Everyone associates “Elvis” with “Elvis Presley”, they always have. Simply changing your legal name to Elvis is just a cynical attempt to dilute “Elvis” so they can have their trademark.

Nobody associates “Elvis” with “Elvis Costello” and it’s because Elvis Presley is a cultural icon and they are entitled to protect their rights to Elvis’ name.

I’m glad their application was turned down and I hope their appeal will be denied as well. They knew what they were doing was wrong and that they wanted to pick a fight with the Elvis Presley estate.

John85851 (profile) says:

Yes, you can copyright common names

Yes, you can copyright common names if you can convince the public that you own the name.

This “Elvis” issue is a good example, but here’s another: did you know that CBS/ Paramount own all usages of the word “Enterprise”? Okay, maybe they don’t own it, but they’ve pressured/ scared/ convinced enough websites that they do.
At digital product sites such as Turbo Squid, sellers aren’t allowed to mention the word “Enterprise” in a product description, even if the product is a 1800’s schooner, a space shuttle or the aircraft carrier.

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