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.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.
"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.
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.
nounIn 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.
1. an informal, German-style restaurant or tavern.
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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Filed Under: german, hofbrau, restaurants, trademark
Companies: hofbrau steakhouse, staatliches hofbrauhaus
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Deja vu the Budweiser fiasco
Trade marks should be extremely narrow, and should never be granted on common language.
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Re: Deja vu the Budweiser fiasco
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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".
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according to this in California alone there are at least 10 restaurants using this word in their name...why has this one been targeted?
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This one is easy.
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.
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Re: This one is easy.
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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)
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Business idea
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In Corporate America (TM) taverns trademark YOU. And Hitler. Because why not?
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oh right because that would make sense and trademark law and practices do anything but make sense.
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Well, it's not all that easy.
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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.
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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.
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Just did a quick search
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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.
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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."
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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.
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Likely they're about to open one in Michigan.
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When did they get a Trademark in the US?
It would be interesting to have a Trademark lawyer comment on whether or not they have a valid claim.
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Hmmm
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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...
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