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.

Filed Under: bruce schlafly, phyllis schlafly, schlafly beer, trademark


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  1. 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.

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