Here's Why The EU Is Crazy Not To Insist On Full Transparency During TAFTA/TTIP

Texas A&M Goes After Washington Brewery Over 12th Man Trademark

from the and-the-crowd-goes-wild dept

Wed, Feb 5th 2014 8:00pm — Timothy Geigner

For some reason that I can't explain, the convergence of alcohol and trademark disputes seems to be a thing. Previously, we've seen how disputes over labels and area codes in beer brands have resulted in this sort of thing. More recently, we've also seen how these trademark disputes can result in new label artwork and brew names from sarcastic and creative breweries.

That last example was top of mind for me when I read about what seems to me to be a silly cease and desist letter sent to a small brewery in Washington State by Texas A&M over a brew they had made using the term "the twelfth man."

A family-owned brewery in Bothell, Wash. planned to sell "12th Man Skittles IPA" on Superbowl weekend but canceled the plans after receiving a cease-and-desist notice from A&M, which has trademarked the phrase. A&M lawyers actively police unlicensed uses of the trademark, which have increased with the Seahawks' run to the Super Bowl. Bothell is a town of about 34,000 located about 20 miles northeast of Seattle. The brewery is operated by Jim Jamison and his family, who have full-time jobs but run the business on the side from property in a residential area. It's only open on Saturdays from noon to 4 p.m.

The 12th Man Skittles IPA was thought up somewhat last minute by Jamison as a way to celebrate the Seahawks' 12th man tradition and star running back Marshawn Lynch's affinity for the candy. He brewed 5.6 gallons of the beer, which isn't even a full batch, with home brew equipment.

For those of you that aren't sports fans out there, the 12th man is a reference to the crowd in Seattle, who are so unbelievably loud as to both confuse the opposing team's offense and generate enough decibels to wind up on the Richter scale. What's strange in this case is that a brewery ostensibly isn't in the same business as a public university. So, while A&M indeed has a trademark and a long tradition on the concept of "the 12th man", it's unclear to this writer how these two entities are competing in commerce. Add to that the fact that it's quite unlikely that any morons in any stages of hurry would be confused enough to think that a tiny amount of beer in Washington had something to do with a college over two thousand miles away, and the common retorts offered by A&M don't seem to hold much water.

Shane Hinckley, A&M's interim vice president for marketing and communications, said A&M has employees who actively watch for trademark violations but that he didn't remember how the small brewery got on the giant university's radar. He said A&M officials have been more actively watching for trademark infringements in the last few weeks.

"The reason we send out cease-and-desist letters is to, No. 1, show we are protecting our brand, which is important in the eyes of trademark law," Hinckley said. "And No. 2 is that infringing use has the potential to dilute our brand."

Fine, but those provisions in trademark law don't really apply if there isn't an element of brand confusion in the same arena of commerce. What might otherwise be the legitimate proactive protection of a trademark is instead just behaving dickishly. But, alas, Jamison didn't have the resources or the will to fight this nonsense, so he relented, calling his brew by another name. A wonderfully appropriate name.

The beer will still be on tap Saturday, just under a different name -- "Cease & Desist IPA." Jamison said he received no other legal notices but dropped "Skittles" from the name just to be safe.

"We're going to serve it in 12-ounce glasses, going with a '12th man' theme, but we won't call it the 12th man pour," Jamison said. Jamison is not upset about A&M's legal action and said that more than anything he is amused. He said A&M's lawyers were really nice and were satisfied with his actions to comply with their demands.

I don't know if I've ever heard of a business model centered around gaining notoriety via cease and desist notices, but Jamison appears to be Streisanding his way to success.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 12th man, beer, likelihood of confusion, moron in a hurry, trademark
Companies: texas a&m

38 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

radarmonkey (profile), 5 Feb 2014 @ 8:34pm

This story really calls for a follow-up in a week or so to see if Jamison reports a significant demand for his "C&D IPA" specifically because of the Streisanding effect of this story.
[ link to this | view in thread ]
Just Sayin', 5 Feb 2014 @ 8:37pm

Really?
"I don't know if I've ever heard of a business model centered around gaining notoriety via cease and desist notices"

KIm DotScam.

/end thread
[ link to this | view in thread ]
Just Sayin', 5 Feb 2014 @ 8:37pm

Really?
"I don't know if I've ever heard of a business model centered around gaining notoriety via cease and desist notices"

KIm DotScam.

/end thread
[ link to this | view in thread ]
MadMatt (profile), 5 Feb 2014 @ 9:22pm

Thant is not cricket.
[ link to this | view in thread ]
G Thompson (profile), 5 Feb 2014 @ 9:27pm

I bet Texas A&M hate Billy Birmingham then http://www.the12thman.com/

Oh wait he's not American and can't be sued for something that is in every other part of the world a cricket reference so they can't stop him using it...

so sad
[ link to this | view in thread ]
MadMatt (profile), 5 Feb 2014 @ 9:28pm

Thant is not cricket.
As the cricket fraternity will espouse the 12th man has been in regular use in that game for longer than the colonial A & M has existed. So I suggest that they forget their precarious trademark. I am no trade mark layer, but letting these guys have that is like letting Microsoft trade mark windows. It is a big world, and it is time the US trademark office expanded it's scope, and stopped these stupid trade marking of pre existing terms.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2014 @ 9:59pm

thought Judas was the 12th man?
[ link to this | view in thread ]
That Anonymous Coward (profile), 5 Feb 2014 @ 11:27pm

"A&M has employees who actively watch for trademark violations"
And here I thought their job was to educate people and give them a degree. How much of the revenue collected form their trademarks lowers the costs for students?
[ link to this | view in thread ]
Anon Coward (UK), 6 Feb 2014 @ 2:47am

Lawyers are DICKHEADS
This just proves what dickheads IP lawyers (in particular) are

and brings their clients/masters into dis-repute and often brings negative publicity for the client and massive positive publicity for the small guy they try to steamroller.
[ link to this | view in thread ]
Who cares (profile), 6 Feb 2014 @ 4:17am

See!
This is a clear indication that IP laws are needed for the creative process.
Without them this brewery would never have had to come up with something to indicate what they think of them.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 4:36am

Why isn't A&M going after the Seahawks for using it? Oh yeah, that's probably because it's the NFL where even the lawyers are bigger and meaner.
[ link to this | view in thread ]
Lifelong Seahawks 12th Man, 6 Feb 2014 @ 4:45am

Re:
Actually, it's because years ago, in an incredibly stupid move, the organization licensed the 12th man concept. It's sad really, Seattle fan make A&M fans look like they're watching the game in the library. It wasn't called the "Kingdome Rule" for nothing
[ link to this | view in thread ]
Ninja (profile), 6 Feb 2014 @ 4:59am

He could have called the 12th trademark lawyer. Still he scored one epic win! Hope his sales shot high up as a result!
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 5:30am

Re: Lawyers are DICKHEADS
Lawyer top priority is billable hours, not unlike a corporation top priority is profit on the bottom line. Both are tools of the wealthy entitled class who suffer greatly from affluenza which makes them oblivious to their lack of vision.
[ link to this | view in thread ]
cpt kangarooski, 6 Feb 2014 @ 5:36am

Well, dilution is not infringement, but you can have dilution in the absence of confusion. It's stupid, and I'm not sure that this mark would qualify, but it's possible.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 5:39am

What moron in a hurry would possibly be confused between a school and a beer?

Hey! - barkeep!
I ordered a beer, not a school. What kind a clip joint you runnin here?
[ link to this | view in thread ]
That One Guy (profile), 6 Feb 2014 @ 5:42am

Re:
Depends on the school.
[ link to this | view in thread ]
Sheogorath (profile), 6 Feb 2014 @ 5:43am

Re:
Judas Iscariot was the twelfth apostle as well as a man. That's different. (Please, be careful. We don't want producers of Bibles getting sued next.)
[ link to this | view in thread ]
Sheogorath (profile), 6 Feb 2014 @ 5:48am

In other words...
Texas A&M just shot down free advertising. Clever. *rolls eyes*
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 5:49am

Hmmm. this brand that they refer to the "12th man" they've actually purchased these fans? I'm a bit confuzzled.
[ link to this | view in thread ]
Anon, 6 Feb 2014 @ 6:16am

Re:
They did. And the Seahawks pay A&M a fee to use the term. http://www.goodbullhunting.com/2014/1/19/5271954/12th-man-trademark-licensing-agreement-texas-am-agg ies-seattle-seahawks
[ link to this | view in thread ]
Tom Gallagher, 6 Feb 2014 @ 6:38am

Alcohol and Trademark Infringement
The connection between Alcohol and trademark infringement is easy to understand. Infringement is all about likelihood of confusion and consumers of alcohol, particularly repeat customers are more likely to be confused than ...well... you get it, right?
[ link to this | view in thread ]
scotts13 (profile), 6 Feb 2014 @ 7:33am

I don't follow baseball
...or soccer, or whatever silly sport this is about, but I'm pretty sure there have been numbers of men between eleven and thirteen in the past. How could they get a trademark on "12th man" EXCEPT as specifically refers to sports events?

If they were worried about protecting their trademark, they could have licensed it to the guy for a token dollar; if they're worried about dilution, they're just wrong.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 7:58am

Re: Re:
I'm far from an A&M fan. (Actually, I don't like the school at all for other reasons that are beyond the scope of this discussion.) But I have to say, you are so beyond wrong about the comparison of Seahawks fans to A&M fans that it is beyond comprehension. You obviously have never witnessed the borderline religious nature of A&M fans support for the school and their sports teams. It is often to the point of stupidity. I also invite you to take a walk around the campus at College Station and make that sort of claim.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 8:05am

Re: Re:
And as for the "Kingdome Rule" a big part of that is the fact that they were in a DOME that keeps the noise in and allows it to echo. Sure they have really good fans. No one disputes that. But acoustics is a big part of all of that.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 8:15am

Re: I don't follow baseball
+1 funny to you for the baseball or soccer comment.

The trademark applies to using the term to market merchandise associated with the Texas A&M football team in general whether it's T-shirts, coffee cups, or even beer.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 8:16am

Re: Re:
And to be honest, the concept behind the 12th man at A&M started WAY before professional football, much less the Seahawks EVER existed. They just borrowed it.
[ link to this | view in thread ]
cubicleslave (profile), 6 Feb 2014 @ 8:23am

And what exactly does beer have to do with football? Other than drinking it while watching the game, of course. Where is the brand confusion? One is a sport and the other is a beverage.
Have to admit, "Cease and Desist IPA" is catchy!
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 8:38am

Re:
What do T-shirts have to do with football or any product that can have a label slapped on it for that matter? The trademark is not about the team so much as it is marketing products with the team's brand on it to fans of the team. Sure A&M doesn't market a beer with their brand. But they could if they wanted to. That's the point.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 8:49am

Re: Re:
I wasn't aware of that. I was wondering why there wasn't any bitching coming from Texas A&M when broadcast TV was airing all of those stories about Seattle's "12th man." God knows Aggies like to bitch.
[ link to this | view in thread ]
Internet Zen Master (profile), 6 Feb 2014 @ 9:41am

"incontestable status"
Apparently Texas A&M has, thanks to the 'wisdom' of the USPTO, trademarks with 'incontestable status' over the phrases '12th Man' and 'Home of the 12th Man'.

As far as general IP law goes I've got a better understanding of copyrights/patents than I do when it comes to the little details around trademark cases, so could someone explain to me how the hell someone could get an 'incontestable status' over the trademark in the first place?

As for how they're competing in commerce, I assume it's because Texas A&M has it's own college football team, and doesn't want to get their fans confused with... Seattle's 12th Man? Yeah, that's the only logical explanation I can come up with.

Of course, that also assumes IP law usually follows logic/common sense...
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 9:45am

Re: "incontestable status"
"As for how they're competing in commerce, I assume it's because Texas A&M has it's own college football team, and doesn't want to get their fans confused with... Seattle's 12th Man? Yeah, that's the only logical explanation I can come up with."

Apparently the issue with the Seahawks has been settled with a license. However, the brewery isn't part of that license deal.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 10:59am

here's another one.

all my life i've heard freshmen referred to as 'fish', but texas a&m has decided that word belongs to them.� so, if you've always casually used that word in that meaning, be careful, or you'll be hearing from them.
[ link to this | view in thread ]
hij (profile), 6 Feb 2014 @ 1:30pm

Re: A&M Ftaternities
If anyone is not sure what a brewery has in common with Texas A&M they need to take a stroll down fraternity lane on any given Sunday morning.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 6:26pm

Re: Re: A&M Ftaternities
I have a diploma from 12th Man Skittles IPA, they keep sending me these forms to join their alumni.
[ link to this | view in thread ]
Anonymous Coward, 6 Feb 2014 @ 6:28pm

Re: Re: "incontestable status"
"Texas A&M doesn't want to get their fans confused"

That is understandable
[ link to this | view in thread ]
mike moore, 25 Feb 2014 @ 11:10am

Texas A&M is a military school.
Did any of you mouthy punks leave school to go fight. Do the Seahawks have that kind of history. You non-Texans can't get it, won't understand it. Use the phrase if u must. Maybe I'll brew a beer called Yankee. "Bless your heart"
[ link to this | view in thread ]
MadMatt (profile), 25 Feb 2014 @ 11:49pm

Hey Mike, Do you really think I care if it is a military school or a Zoo. They have trademarks on phrases in common usage, they are not entitled to them and like the Military they so fondly emulate they use bully boy tactics to try and maintains their silly and illegal trademarks. So there you go. I consider their trademarks an abuse of a sadly abused system. Let them litigate to their hearts content.
[ link to this | view in thread ]