Schlafly Family Loses Appeal To Block Schlafly Family Member's Brewery's Trademark Application

from the beer-me dept

As you will by now know, trademark bullying ticks me off. In particular, trademark bullying built on ideological grounds rather than any real concern over customer confusion gets my fur up. But when all of the above occurs against a brewery, makers of sweet, sweet beer? Well, that is a bridge too far.

Which is why it is with great pleasure that I can inform you that the greater Schlafly family, famous for its matriarch and puritanical icon Phyllis Schlafly, has lost a trademark opposition against another family member's brewery. This all started when the now late Phyllis Schlafly and her son Bruce Schlafly opposed her nephew Tom Schlafly from trademarking the name of his beer, Schlafly Beer. The opposition itself made zero sense, since Phyllis and Bruce chiefly objected to having their surname associated with the beer, given that Phyllis' reputation was particularly well cultivated with the Mormon and Baptist populations that don't look kindly on alcohol, generally. Successfully opposing the mark, however, wouldn't keep Tom from keeping that name for his beer. Instead, it simply meant that essentially everyone could call their beer Schlafly Beer, compounding the problem. Regardless, the Trademark Office took one look at the opposition and tossed it on obvious grounds, namely that Schlafly is Tom's surname too, and nobody is necessarily going to see Schlafly beer and suddenly think Phyllis took to boozing late in life.

Well, the Schlafly's appealed that decision, even after Phyllis passed away, and now the Federal Circuit Court of Appeals has unanimously ruled in favor of the brewery's right to produce Schlafly Beer.

In a 3-0 decision, the U.S. Federal Circuit Court of Appeals ruled in favor of Saint Louis Brewery LLC, which was co-founded by Schlafly’s nephew Thomas Schlafly, and had applied in 2011 to trademark the Schlafly name.  Circuit Judge Pauline Newman said the name had acquired a “secondary meaning” and “distinctiveness” through sales of Schlafly-branded beer, and that surnames could be trademarked when that occurred. The brewery began selling beer with the Schlafly logo in 1991, and sales had reached 74.8 million cans, bottles and draft servings between 2009 and 2014.

And that should be that for a trademark dispute that really, really never should have made it this far. Trademark law is built on the test of consumer confusion, and opposing a mark for a product already this widely distributed, wherein the person applying for the mark has a totally reasonable claim to the mark -- it's his surname -- is, on its face, not an opposition that cares about confusion. Instead, it was clear from the outset that this was some combination of family strife mixed with puritanical ideology attempting to use trademark law as a vehicle towards an end. The court rightly saw right through this and upheld the dismissal of the opposition.

“This is a huge relief,” Thomas Schlafly, who is also the brewery’s chairman, said in an interview. “It had never occurred to me that my relatives, who had no connection with beer, would oppose a routine trademark.”

Sure, because that opposition was unreasonable. Still, this story happens to end well. I can look forward to toasting the memory of Phyllis Schlafly with an ice-cold can of Schlafly beer.


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  • icon
    Gary (profile), 3 Dec 2018 @ 8:17pm

    And now...

    And now if only rational ecommerce was allowed so we could have cans of craft beer delivered from across the state or country - I'd try some of that!

    Protectionist state liquor laws also defy common sense.

    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, 3 Dec 2018 @ 8:18pm

    out_of_the_blue having another incontinence episode in three, two, one...

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

    • icon
      Gary (profile), 3 Dec 2018 @ 8:26pm

      Re: Seriously

      Really, just stop with the pre-emptive summoning ritual. We know he hates TD no matter what the subject and the more you talk about blue the harder he gets.

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

    • icon
      That One Guy (profile), 3 Dec 2018 @ 10:29pm

      'Who's the greater fool? The fool, or the one who follows them?'

      The only thing sadder than a deranged individual obsessing for years over a site they hate is someone in turn obsessing over them.

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

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        identicon
        Lou S Bowles, 4 Dec 2018 @ 5:49am

        Re: 'Who's the greater fool? The fool, or the one who follows them?'

        The only thing sadder than a deranged individual obsessing for years over a site they hate is someone in turn obsessing over them.

        Says the obsessor with 15,367 comments!

        As practical fact, so long as with zero effort I'm DRIVING in advance 3 out of 5 comments (including yours!) to clutter the site, then I'm WINNING, kids.

        YOU need to roll back YOUR insanity and tolerate dissent. It's a discussion forum open to everyone by the form contract, NOT your walled garden.

        Here's what USED TO BE IN PLACE, I'm not asking for anything new or special: the "Report" button is only for those comments which are either commercial or outside common law.

        "Hiding" of my comments used to be NEVER DONE, now it's automatic by all regulars soon as see don't like a comment. YOU are ruining the site, kids. NOT ME. YOU. -- I'm LAUGHING at you who can't handle even a little bit of dissent in text!

        By the way: I've not changed my views nor how stated (except as topics have), but my comments stand out far more these days among the VERY FEW since everyone reasonable LEFT. You / the site are losing in all ways. And yet will not change! -- Except for some new cosmetics.

        The underlying cause of your inability to tolerate dissent is that your piratey notions have failed, and Masnick is ever more openly a corporatist / globalist. You're simply trying to keep the internet from working as should.

        So long as the "hiding" continues I'll protest it, besides write what I think substantive disagreement with Masnick's views. You will of course claim that I only "troll" and ad hom, but I'm well within the "ignorant motherfucker" standard (written by the very Timothy Geigner aka "Dark Helmet" here) which Masnick himself set when called that a "joke", at least when directed at me.

        Masnick could end the undue "hiding" in five minutes. -- INDEED DID last year for a while, just like turning a switch. -- It's not "the community", there's an Admin / Mod who decides. -- It's also helpful for my case here that Masnick has to LIE about a "voting system" that has no up votes even possible.

        Ruining the site is entirely Masnick's choice, and I choose to take it as a positive. The few prospective new readers will click on a few hidden comments and see that ALL dissent is suppressed, the regulars clearly too childish to either ignore or refute, so they leave. As should when a site betrays its stated principles.

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

        • identicon
          Anonymous Coward, 4 Dec 2018 @ 6:05am

          Re: Re: 'Who's the greater fool? The fool, or the one who follows them?'

          I have never read anything from That ONE Guy that had me clicking the flag button. His comments are relevant and appreciated.

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

        • identicon
          Anonymous Coward, 4 Dec 2018 @ 6:46am

          Re: Re: 'Who's the greater fool? The fool, or the one who follows them?'

          As far as the way the hidden comment functionality works, I'm convinced that it was fine-tuned to remove YOUR comments alone, and perhaps even tweaked occasionally to compensate for fluctuating readership involvement.

          A while back I ran a few tests, after noticing that some of the removed comments had nothing in them that was even slightly disagreeable. The test involved posting a mildly disagreeable comment, then waiting many hours or until the next day, and then posting right under it (keeping the same color-coded IP address) a scorching troll post. Guess what happened? The mild comment disappeared while the offensive troll comment remained. So obviously there is a certain degree of flagging that goes on that Techdirt's decider has determined does not rise to the level of warranting a takedown, thus determining the "clickrate" needed to hide a post.

          While it might be considered Techdirt's secret sauce, it would be interesting to see just how much the flagging click rates vary among posts, both now and when the flagging system first started. I'd guess that it's become somewhat more polarized over time. That's because it's quite possible that readers have over time been conditioned to view certain types of comments (but not others) as deserving removal, based on the "decision" set by the algorithm, and adjusted their own flagging habits accordingly based on the "suggestions" fed to them.

          Anyway, it might make for an interesting research project.

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          • icon
            Anonymous Anonymous Coward (profile), 4 Dec 2018 @ 7:13am

            Re: Re: Re: 'Who's the greater fool? The fool, or the one who follows them?'

            The only thing your 'experiment' proved was that people don't always read articles later in the day or the next day and vote. Your mildly disagreeable post might have been off topic enough to get flagged rather than getting flagged for being mildly disagreeable. Then there is your assumption that the same people read every article and/or that all readers have the same taste for what is or isn't acceptable. You need a better study design. Good luck with that.

            There is no algorithm.

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

          • identicon
            Anonymous Coward, 4 Dec 2018 @ 7:38am

            Re: Re: Re: 'Who's the greater fool? The fool, or the one who follows them?'

            Alternate possibility:

            Long-time readers have learned to recognize this putz's posts based on his pseudonym choices and his writing style, and having recognized him, flag him as a general rule, based on the history of comments.

            By this point, it's simple enough to predict the content of one of this commenter's posts. You could play bingo, with "TechDirt hate" being the middle free space. Other spaces: Lying Mike Masnick, Google Shill, PIRATES, astro-turf, common law, UK serfs, etc.

            Every time I actually read one of these comments, it's the same base content, and none of it is worth my time. I flag this commenter's posts, because this commenter has trained me to do so. This guy attracts flags through consistently flaggable behavior, and thus gets consistently flagged, and for many the flagging is reflexive.

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

            • identicon
              Anonymous Coward, 4 Dec 2018 @ 8:42am

              Re: Re: Re: Re: 'Who's the greater fool? The fool, or the one who follows them?'

              I flag this commenter's posts, because this commenter has trained me to do so.

              Hooray for operant conditioning!

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

        • icon
          Gwiz (profile), 4 Dec 2018 @ 7:40am

          Re: Re:

          Sometimes I wish I had the $100,000,001 to silence Techdirt for a year. Then Blue would think he "won" and go away forever.

          I find it very telling that Blue approaches civilized discourse as a win/lose scenario as opposed to a learning opportunity.

          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, 4 Dec 2018 @ 8:28am

          Re: Re:

          out_of_the_blue just loathes it when due process is enforced.

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

        • identicon
          Anonymous Coward, 4 Dec 2018 @ 12:25pm

          Re: Re: 'Who's the greater fool? Blue is

          Honest question time. How many comments have you made? I bet it’s at least 15,000. Follow up question. How many hours a day do you spend on here over the past decade?

          Yeah bro you’re “winning” like your boy trump is.

          By the way you really are an ignorant motherfucker.

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

        • identicon
          Anonymous Coward, 4 Dec 2018 @ 6:50pm

          Re: Re:

          Time to change your pants.

          And thanks for eating the bait like a class A sucker.

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

  • icon
    That One Guy (profile), 3 Dec 2018 @ 10:35pm

    No, not that kind

    The opposition itself made zero sense, since Phyllis and Bruce chiefly objected to having their surname associated with the beer, given that Phyllis' reputation was particularly well cultivated with the Mormon and Baptist populations that don't look kindly on alcohol, generally.

    I'm guessing they heard that one of if not the main objection you can lodge against a trademark is that it will cause customer confusion, and whatever poor/greedy sap/leech of a lawyer they hired didn't bother to inform them that said confusion isn't along the lines of 'people might think I drink if a line of booze has my name on it!', and instead applies to confusion between companies or products.

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

  • icon
    wshuff (profile), 4 Dec 2018 @ 4:35am

    Schlafly Beer should celebrate by releasing a new bitter, the Phyllis.

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

  • identicon
    Anonymous Coward, 4 Dec 2018 @ 9:16am

    Hmmmm, what if someone were to name their pot grow start up, Mary Jane Schlafly. lol Or how about a family planning business named after the silly person.

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

  • icon
    Scott S. (profile), 4 Dec 2018 @ 11:14am

    Still, this story happens to end well.

    Tom Schlafly might strongly disagree that "this story happens to end well." This case cost Tom over 6 years of unnecessary stress and distraction, plus thousands of dollars he will never get back. It would be helpful if Tom could say what he had to spend on this fight against a trademark bully. It's likely that it was enough to pay cash for a very large home near his brewery in St. Louis for what he had to spend.

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

    • icon
      That One Guy (profile), 4 Dec 2018 @ 1:11pm

      Re: Still, this story happens to end well.

      'Well' relatively speaking in that case, as while he is certainly out a lot of money he did win in court and seems to be in a shape to continue, something that others have not been as 'lucky' with when faced with bogus legal action.

      I do agree though that the fact that the bar has been set that low is all sorts of sad.

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

      • icon
        Scott S. (profile), 4 Dec 2018 @ 4:13pm

        Re: Re: Still, this story happens to end well.

        You should ask Tom Schlafly how much he had to spend (in hours, dollars, lost time with family and friends, lost business and personal opportunities, plus dealing with Schlafly family quarreling), and if after all that, he believes "this story happens to end well."

        Would you have agreed "this story happens to end well" if Phyllis Schlafly and her son had baselessly sued Tom Schlafly claiming they owned Tom's house, and he had to spend over 6 years and 100s of 1000s of dollars to prove he owns his house, and to top it off, he didn't get any of his money back?

        I'm sure Timothy Geigner meant no harm. He's clearly strongly against trademark bullies. But it's wrong for others to say it "happens to end well" if a victim of a trademark bully is fortunate enough to possess the large amount of resources and tenacity necessary to "win" these types of cases. Unless of course their specifically quoting a victorious victim.

        Just ask any of the relative few entrepreneurs who have survived bogus legal attacks by trademark bully Entrepreneur magazine if they believe their stories "happened to end well."

        The only people who "win" in such battles are the attorneys.

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

        • icon
          That One Guy (profile), 4 Dec 2018 @ 6:48pm

          Re: Re: Re: Still, this story happens to end well.

          You should ask Tom Schlafly how much he had to spend (in hours, dollars, lost time with family and friends, lost business and personal opportunities, plus dealing with Schlafly family quarreling), and if after all that, he believes "this story happens to end well."

          He won the case and still has the resources available for that win to actually matter. Compared to others who've faced similar circumstances yeah, while he may not be in perfect shape he came out a lot better than others have.

          Did you actually read my comment? I didn't say it went well, I said that compared to others who've been in that situation he came out comparatively well, similar to how someone who 'only' loses an arm from a type of accident that regularly causes multiple limb losses if not death would be comparatively well off. Could it have been better for him? Sure. But it could have been much, much worse, which is the point.

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

          • icon
            Scott S. (profile), 4 Dec 2018 @ 7:07pm

            Re: Re: Re: Re: Still, this story happens to end well.

            I repeat, "You should ask Tom Schlafly how much he had to spend (in hours, dollars, lost time with family and friends, lost business and personal opportunities, plus dealing with Schlafly family quarreling), and if after all that, he believes "this story happens to end well."

            Your/my opinion doesn't matter. We likely don't know 99% of what he went through, regardless of how many resources he may have. And he still only has 24hrs a day. Only Tom can legitimately say whether or not his "story happens to end well." Let's not put words into his mouth.

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

            • icon
              That One Guy (profile), 5 Dec 2018 @ 1:41am

              Re: Re: Re: Re: Re: Still, this story happens to end well.

              I swear it's like watching someone split hairs on the atomic level...

              If I was saying 'According to Tom, he came out well' here, you might have a point. If the author of the article had written that it went well and attributed that to Tom, you might have a point.

              Neither of these are the case.

              I didn't realize that this needed to be pointed out, but just to be really clear, when the author of the article says this ended well, that is his opinion, not Tom Schlafly's. When I said this ended comparatively well, that was my opinion. Our respective opinions do in fact matter here because that is what is being discussed, and neither one of us are 'putting words in his mouth' by giving our opinions, since neither of us are attributing those opinions to Tom.

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

        • icon
          That One Guy (profile), 4 Dec 2018 @ 6:56pm

          Perfect timing

          And in timing just too perfect to make up, here's an example of just that sort of thing, where another drink company won a trademark dispute but essentially bankrupted itself in the process, such that unless they can scrounge up a hefty amount it will be a Pyrrhic victory with a meaningless 'win'.

          Stories like that are why the author said that this case 'ended well', because winning the case and being in a state where that win actually matters is vastly better than others have faced in comparison, even if it's still bad in general.

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

        • identicon
          Elizabeth, 6 Dec 2018 @ 10:48am

          Re: Re: Re: Still, this story happens to end well.

          Speaking of Entrepreneur Magazine somebody should ask Karen M. how much she has spent on fruitless litigation. She has probably gone through 10s of 1000s of dollars with multiple attorneys. I'm sure there is quarrels and tension in Karen's family about much wasted time and money. I wonder what useful and productive things could have been done with the money wasted. A nice new car at least!

          I truly feel sorry for her predicament and would hope it would be over soon. But the insanity continues to this day.

          I agree with you that only the attorneys win.

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

  • icon
    Steerpike (profile), 4 Dec 2018 @ 3:06pm

    Glad to hear it. Used to work with Tom; he's a good guy. If you're ever in St. Louis on January 25, Robert Burns' birthday, go to the Schlafly Tap Room.

    I mean, go any time, but particularly at that time.

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


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