First Anchor Brewing trademarked Steam Beer, but did so at a time when absolutely nobody else in the world made anything even remotely similar, so it was entirely understandable. As the years rolled on, and many brewers have been forced to call the same or similar type of beer a “California Common,” I can’t help but think it’s an idea whose time has passed. I know it’s too valuable, but personally I’d like to see them relinquish their hold over the name and allow the rest of the world to call it by its proper name.
Then Full Sailing Brewing came out with their genius stubbie bottles that they called Session Lager and Session Black. And that might have been the end of it, but as I understand it, they also trademarked “session beer” and related marks. No one objected, of course, because there’s nobody to object. “Session beer” was, and in my mind remains, a generic term so there really was no one to file an Amicus curiae or otherwise oppose the trademark. What I don’t understand is how an already established generic term can be appropriated for private business use. When a trade name becomes so common — remember Scotch tape? — that it becomes the generic word for it then it loses its status as a protected trademark, in effect a product of too much success. Other examples of generic words that used to be trade names include aspirin, escalator, heroin, kerosene, laundromat, linoleum, pilates, thermos, videotape and zipper, to name just a few. But session started out as a generic, loosely defined term. I love Full Sail, but hate the notion that they “own” the term “session beer.”
That brings us up to yesterday, when Abita Brewing of Louisiana sent a cease and desist letter to a local charity, claiming that they own the trademark on the term “pub crawl,” and have since 1999. According to the Baton Rogue Business Report:
An attorney representing the Abita Brewing Company has sent a cease-and-desist letter to a charity organizer, ordering him not to use the term “pub crawl” to refer to his events. Todd Owers III, an attorney with the New Orleans firm of Carver Darden, says Abita owns the Louisiana state trademark for “pub crawl” and that for Manu Kamat to use the term in referring to his events in downtown Baton Rouge is a clear infringement on the brewery’s rights. Kamat says he started organizing monthly bar tours across downtown Baton Rouge in December to benefit the New Orleans Council for Community and Justice. Participants pay a few dollars, which entitles them to drink specials at participating bars for the night. Kamat says he finds Abita’s actions “a little bully-ish.” David Blossman, president of Abita, says the brewery is trying to protect its rights. “We’re trying to work these things out amicably,” he says. Kamat says he got the letter from Owers on Feb. 18, the night of his most recent event. In the letter, Owers attached documents that show Abita filed an application to use the trade name “pub crawl” with the Secretary of State in July 1999 and renewed it for another 10 years in July 2009. Kamat says he’s seen the term “pub crawl” all across the U.S. and Europe and that Abita’s action is like trying to trademark the term “happy hour.” But Blossman says that Abita made the term “pub crawl” known across Louisiana and that the term is now synonymous with the brewery. Kamat says he’s a “huge fan” of Abita and is looking for ways to continue to have his events without further upsetting the popular local brewery. He’s dubbed the next event, set for March 25, a “bar golf.” But he won’t comply with one request from Abita—to transfer control of the domain name pubcrawlbr.com to the brewery.
Now I don’t live in Louisiana, but I still have to question the statement that “Abita made the term ‘pub crawl’ known across Louisiana and that the term is now synonymous with the brewery.” I’ve heard, and used, the term everywhere I’ve traveled, both here and abroad and I think you’d be hard pressed to convince me that it’s not a near universal term in the English-speaking world. I certainly have no such association between Abita and pub crawls. In 1999, when they apparently were granted a state trademark, again there would have been no one to oppose them or speak on behalf of such a generic term. My bet is nobody even realized they “owned” the term “pub crawl.” And while I know full well that trademark holders have an affirmative duty to vigorously defend their marks, I can’t see how this won’t be a dead loser in the goodwill department or for that matter what advantage there is to actually owning the trademark on a term most people already believe is generic in the first place.
In the 1990s big corporate breweries began trying to mimic craft beers and take over the types of events smaller breweries like us had created. To protect the Pub Crawl for our fans we trademarked the name of the event in Louisiana only. Our intent was to prevent any confusion and to stop the big breweries from copying our success. Over the years, we’ve sent out letters asking others not to use the name Pub Crawl unless it is an Abita sponsored event.
We’ve heard from you today on this trademark issue and we agree. Your respect is far more important to us than two little words.
This morning we reached out to the New Orleans Council for Community and Justice and let them know we’ve changed our mind and our position on the trademark issue. We have offered and they have accepted our support of their next event, scheduled for March 25. Abita is proud of our history of charitable giving to our community through our fundraising brews and our commitment to non-profit organizations.
That’s a classy move, in my opinion. Few businesses can admit they’re wrong or at least admit an error in judgment. They appear to have listened to their customers and understood that their loyalty and respect was more important than being in the “right” legally.