Brewer Threatens Restaurant For Using The Word 'Hofbrau'

from the sprechen-sie-deutsch? dept

We talk a great deal of the problems that are created when the government approves trademark applications for words that are either common or generic. But does the generic nature of a word change when that word is foreign in nature? We won't have a definitive answer to that question in this case, but we certainly will see some of the problems that could arise.

Hofbrau Steak House and American Grille has been serving up German food in Northern Michigan for over six decades. Staatliches Hofbrauhaus has been brewing beer and operating eateries since the late eighteen-hundreds. Yet it was only recently that the brewer sent letters to Hofbrau demanding it change its name, claiming that it had a trademark on "hofbrau."

Hofbrau Steak House & American Grille shared the news on Facebook Wednesday, along with photos of a letter from Staatliches Hofbräuhaus, HB, that demands the Northern Michigan restaurant change its name.

"Hofbrau NO more?!? Well, after all these years, it's looks like everyone's favorite Interlochen hangout is in need of a NEW Name!!," the owners wrote on Facebook. "..., HOW do you come up with a name?? We are asking for your help!"

The letter from Hofbräu München states the Munich brewery owns the trademark to Hofbrau and has used it since as early as 1894.
Now, we could analyze the likelihood of confusion for eaters in Northern Michigan between a local restaurant and a massive German brewery. Or we could try to parse out whether Hofbrauhaus is actually competing with the restaurant in that market. Those are worthy discussions to have, but I would rather point the finger at the USPTO for approving a trademark on "hofbrau" in the first place.

The word "hofbrau" is a shortened version of the longer German word "hofbrauhaus", from which the brewery takes its name. You might think that this would strengthen the brewery's claim, except that looking into the definition of the word brings with it questions about why the trademark was ever approved in the first place.
noun
1. an informal, German-style restaurant or tavern.
In other words, the word means German restaurant or tavern. If that isn't the very definition of a generic mark, then I don't know what would be. It's like trademarking "cafeteria", but in Spanish. Does a foreign language version of an ultra-generic trademark suddenly render it permissible for trademark enforcement? Every reasonable intuition screams "no", particularly in America, the cultural and national melting pot that we are.

So, whose fault is it that a small eatery in Northern Michigan is now going to change its name after sixty years of use? The brewery, yes, but the trademark office first.


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  • icon
    klaus (profile), 12 Apr 2016 @ 11:46pm

    Deja vu the Budweiser fiasco

    If Hofbrau Steak House and American Grille has been serving up German food in Northern Michigan for over six decades AND have been operating under the same name you would think that Hofbräu München would lose any case due to the fact that they've clearly not policed their mark for those six decades.

    Trade marks should be extremely narrow, and should never be granted on common language.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Apr 2016 @ 11:56pm

    The discussion about that might be enriched by knowing the fact that Hofbräu, Hofbrauhaus etc. in German are anything but generic. They are very firmly and definitly associated with the Munich brewery and tourist trap mass eatery. I've never heard anyone here call any other tavern a Hofbräu. So in Germany, it is a quite distinctive trademark. Are trademarks a regional thing? If they are global, doesn't the brewery, which as said above is also known as a place to eat, so is in the same market, have to defend their trademark internationally? Regardless of the sensibility of more or less requiring globally unique business identifiers if that was the case, is it currently the law?

    reply to this | link to this | view in chronology ]

    • icon
      Ben (profile), 13 Apr 2016 @ 7:23am

      Re:

      The disambiguation page for Hofbrau (https://en.wikipedia.org/wiki/Hofbr%C3%A4u) shows multiple "Hofbrau"s in Germany, so it doesn't quite appear generic.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Apr 2016 @ 1:06am

        Re: Re:

        It was a generic term once, as someone already explained. But it has been long since Germany /had/ any courts, so few Hofanything survive. And even the term Brauhaus is archaic. You might find it in names, but usually you would refer to a place or Company making beer as a brewery (Brauerei) rather than a brew house (Brauhaus) today.

        The Hofbräus beside the munich one on the wiki page are either really local or not known as Hofbräu. The first entry on the page for example? Früh? I think my first beer was a Früh Kölsch, I've drunken Früh for years. This is the first time I ever saw that full name. I guess it's somewhere on the bottle, but around here, it's just "Früh" or "Früh Kölsch".

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2016 @ 12:00am

    https://en.wikipedia.org/wiki/Hofbrau

    according to this in California alone there are at least 10 restaurants using this word in their name...why has this one been targeted?

    reply to this | link to this | view in chronology ]

  • identicon
    David, 13 Apr 2016 @ 12:40am

    This one is easy.

    "Hofbrau" and "Hofbräu" are as different as "to brew" and "brewage". Americans imagine that the umlauts in German words are optional indicators of syllables or whatever, but "ä" is a completely different letter from "a", pronounced differently and giving words different meanings. Its transliteration would be "ae" in absence of umlauts, so if one were talking about the same word on an ASCII terminal (on an actual typewriter, you backspace and tack " on), one would have to write "Hofbraeu" or "Hofbraeuhaus".

    This is not the case here.In addition, "Hofbräuhaus" is descriptive (Germans form compound words without spaces) and just means "court brew house".

    There is a famous drinking song called "In München steht ein Hofbräuhaus, eins, zwei, gsuffa", approximately "In Munich there is a court brew house, one, two, quaff!" written in 1935. Note that it says "ein Hofbräuhaus", not "das Hofbräuhaus", namely a court brew house rather than the court brew house.

    So even in the Heydey of this brewery, the term was understood as being descriptive rather than a proper name.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Apr 2016 @ 1:15am

      Re: This one is easy.

      Not even. Rather back then. It's an archaic term not in use anymore, because we've not had courts in the sense of an aristocracy or monarchy for a long time. Those terms die out. And the only one prominently know more than locally is probably the Hofbräuhaus or Hofbrauhaus (a rare occurance were both spellings make sense, no idea which is the official one) in Munich. It's an archaic term, once descriptive, that got more unique with time. It's one of those words where many people do not even notice anymore that it is a compound word and once had a descriptive meaning without actually thinking about it. You learn the word as a proper name for the place in Munich. At least a quick poll around here wasm while probably not representative for all of Germany or statistically relevant, very definite about that.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2016 @ 1:22am

    Hey if the word "kinder" can be mired in trademark, a "lesser known" word like "hofbräu/hofbräuhaus" is probably fair game./s

    reply to this | link to this | view in chronology ]

  • identicon
    roger, 13 Apr 2016 @ 1:23am

    Actually... Hofbräuhaus isn´t just a name...

    From History the "Hof" means the (royal) court. So there were bakeries, tailors, brewers and other companies who supplied the bavarian royal court with stuff and they had "the previlege" to call themself "court-supplieres"

    So there is the added thing of a michigan restaurant calling itself a (royal) court-brewery (hofbrau)

    reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 13 Apr 2016 @ 1:31am

    Does German legally count as a foreign language when there is no official language of the United States?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2016 @ 2:48am

    Business idea

    I'm going to trademark common words like restaurant, deli and pizzeria, then start suing. It's a viable business plan.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 13 Apr 2016 @ 3:30am

    Every reasonable intuition screams "no", particularly in America, the cultural and national melting pot that we are.

    In Corporate America (TM) taverns trademark YOU. And Hitler. Because why not?

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 13 Apr 2016 @ 3:52am

    The restaurant should fight this. Even if the trademark was valid, the fact that the brewery didn't defend this use of it for over 60 years is grounds for invalidating. (IANAL)

    reply to this | link to this | view in chronology ]

    • icon
      John85851 (profile), 13 Apr 2016 @ 8:31am

      Re:

      This is a good point. Is there any kind of statute of limitations for filing a case like this? Or is there no limit and it's basically a case of someone filing because they finally came across the other site while doing a Google search?

      reply to this | link to this | view in chronology ]

      • identicon
        DCL, 13 Apr 2016 @ 10:15am

        Re: Re:

        I wonder why there is no auto grandfathering clause for instances where it is well established the that term was already in use before the trademark was awarded.

        oh right because that would make sense and trademark law and practices do anything but make sense.

        reply to this | link to this | view in chronology ]

  • identicon
    Paul, 13 Apr 2016 @ 5:05am

    Well, it's not all that easy.

    For A): it's trademarked Münich's main beer brand (HB), for B): it's trademarked eatery (HB), and for C): there is HB restaurant in Las Vegas, next to Hard Rock casino, which I believe is US-trademarked as well.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 13 Apr 2016 @ 5:33am

    OMG, Timmy. Learn the basics.

    In other words, the word means German restaurant or tavern. If that isn't the very definition of a generic mark, then I don't know what would be. It's like trademarking "cafeteria", but in Spanish. Does a foreign language version of an ultra-generic trademark suddenly render it permissible for trademark enforcement? Every reasonable intuition screams "no", particularly in America, the cultural and national melting pot that we are.

    Whoa! Foreign words can be translated into English? And that might affect their protectability? That's never come up before. You're the first to figure that out!

    Oh wait, there's already a well-developed body of law about that very issue, i.e., the doctrine of foreign equivalents. Here's a link to Wikipedia, your go to source for all legal info: https://en.wikipedia.org/wiki/Doctrine_of_foreign_equivalents

    So, whose fault is it that a small eatery in Northern Michigan is now going to change its name after sixty years of use? The brewery, yes, but the trademark office first.

    Dude, learn what secondary meaning is. Just because something at first blush looks generic, that doesn't mean it hasn't become distinctive. If the USPTO registers a generic looking mark, it's because the mark became registrable through use. Unless you can show otherwise, stop blaming the USPTO for doing its job. Seriously. Here's another Wikipedia link for you: https://en.wikipedia.org/wiki/Trademark_distinctiveness#Acquired_distinctiveness

    You are NOT qualified to write about trademark law. It's hilarious that Mike pays you for this crap.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Apr 2016 @ 7:49am

      Re:

      "You are NOT qualified to write about trademark law. It's hilarious that Mike pays you for this crap."

      I find that any writer here on Techdirt pays far more attention to detail and gets more things right than basically any other news source I've found. And I've also found them generally open to constructive criticism and corrections, but instead you've resorted hyperbolic insults.
      Good Job.

      reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 13 Apr 2016 @ 6:16am

    Just did a quick search

    Just did a quick search of german restaurants in my area. I count 4 "hofbrau"s. Seems pretty generic to me.

    reply to this | link to this | view in chronology ]

  • icon
    Andreas (profile), 13 Apr 2016 @ 7:22am

    First of all, that is not a noun that is in use in German language at all, except when referring to the Hofbräuhaus. I'm not sure what sources your dictionary has, but it definitely sucks :D

    This conclusion you draw: "the word means German restaurant or tavern" is just wrong, and you shouldn't make strong claims like that for a journalistic article.

    Second: the Hofbräuhaus is not just a brewery, even though the mother company is - it is actually a restaurant where you go to eat. So this is exactly the kind of services those other places mentioned offer, and thus applying the trademark is correct.

    Third: I guess all of the Hofbrau named places will have a similar letter in the mail sooner or later, but not everyone talks about it so freely.

    Fourth: Yes, trademarks are an ugly fucked up system that contorts the original idea. But public shaming doesn't help anyone, so better make suggestions how to fix this system.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 13 Apr 2016 @ 7:47am

      Re:

      "But public shaming doesn't help anyone"

      If it makes a company think twice about questionable actions in the future, then it probably helps someone, at least a little. Very, little, true, but it's all we got right now.

      Your point here can be paraphrased as "It's the way it is, so sit down, shut up, and take it."

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Apr 2016 @ 1:40am

        Re: Re:

        One of his points, yes. I agree with you on your opinion to Andreas' fourth point. But his first point is totally on the spot. In America you might have appropriated the trademark for one of the most stereotypical German eatery/brewery company and used it as a generic style reference. The many Hofbraus mentioned in the comments certainly suggest so. In which case it really is generic by now in the US.
        But in Germany, where the Munich Hofbräuhaus is based and the trademark roots spring from, it is very distinctive. I'm certain there is an interesting legal argument in the timeframe, not only regarding this single use, but seeing noone cared for long enough to let it become generic in the US. I also suspect the fact that it is distinctive in it's home market and generic in the defendant's market might be an interesting legal problem.
        And I agree that the suit is mainly stupid, because, as mentioned above: those are two completely different markets. There aren't a lot of people who might make a quick hop across the Atlantic for a fresh cold one in Munich instead of going into the neibourghood Hofbrau in Michigan.
        But just saying the word means German restaurant or tavern is, in the context of this article, a rather shallow half truth and not up to the standards Techdirt usually shows.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2016 @ 7:26am

    Hofbrau has been opening restaurants/breweries in the US for years.

    Likely they're about to open one in Michigan.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 13 Apr 2016 @ 8:28am

    When did they get a Trademark in the US?

    Doing a search on the USPTO website and searching for Hofbrau brings up 22 search results. The two live Trademarks with the one word are from 2011 and 2013. There are 9 other live uses with other words included and they look like restaurants and beer.
    It would be interesting to have a Trademark lawyer comment on whether or not they have a valid claim.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Apr 2016 @ 9:33am

    "Hofbrau" added to Techdirt's wordfilter.

    reply to this | link to this | view in chronology ]

  • icon
    Mat (profile), 13 Apr 2016 @ 9:56am

    Hmmm

    This smells like stupid... And actually, a better metaphor isn't trying to trademark Cafeteria in Spanish, it'd be trying to trademark 'cafe' which is short for cafeteria. And is Spanish.

    reply to this | link to this | view in chronology ]

  • identicon
    ich bin keine berliner, 13 Apr 2016 @ 12:02pm

    A hof is a courtyard. Brau is brew and haus is house. So
    literally a courtyard brewhouse. I have been to several places in Germany called Hofbrauhaus - all were in bavaria, all had great beer and most had good food. So yes it is a generic term just like windows. Nothing new here - carry on...

    reply to this | link to this | view in chronology ]


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