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

Trademark Office Tosses Phyllis Schlafly's Opposition To Her Nephew's Brewery Name Trademark Application

from the family-flies dept

We discuss trademark disputes centering on the beer and alcohol industry around here because that particular industry is finding itself at something of a barrier centered on how brews are named. Still, one story from a couple of years ago was particularly head-scratching. That story was that of Schlafly beer, made by Tom Schlafly's St. Louis brewery, and the opposition to his trademark application from his aunt and cousin, Phyllis and Bruce Schlafly repsectively. Both family members filed oppositions to the trademark application, claiming that having their last name associated with an alcoholic product would negatively impact them. Bruce is an orthopedic surgeon, making one wonder exactly how bone-shattering Schlafly beer actually is. Phyllis, meanwhile, is a super-conservative commentator with an audience particularly cultivated amongst Mormons and Baptists, therefore an alcohol product with her surname on it would be ultra negative for her commentating business.

I said at the time that the brewery was going to win this fight. And, now, it certainly appears that it has.

Earlier this month, the Patent and Trademark Office dismissed opposition filed by the St. Louis native and her son, Bruce Schlafly, rejecting the argument that a trademark shouldn't be allowed because it's primarily a surname, the St. Louis Post-Dispatch reported. The decision doesn't mean the trademark has been awarded to the brewery, but simply removes an impediment.

The primary argument within the original opposition was that the trademark shouldn't be allowed because it consisted primarily of a surname, but this was really all about the other Schlafly's dislike of the alcohol industry. And that, thankfully, is not a basis for a trademark opposition. The opposition was especially perplexing because a lack of a trademark registration has not to date, and would not in the future, prevent Tom Schlafly from selling Schlafly-branded beer. What it would do is prevent anyone else from also doing so, meaning that preventing the trademark would potentially allow more exposure for the name to be used on alcohol products, not less.

Despite the opposition running counter to Phyllis' desires, she apparently may not be done with this just yet.

Phyllis Schlafly, who will turn 92 on Monday, declined comment, but her son and attorney, Andy Schlafly, said he may appeal.

"I'm disappointed that the decision did not come to terms with the purpose of the statute that generally prohibits obtaining a trademark in a last name," he said.

Must be a fun Thanksgiving dinner at the Schlafly house these past few years.

Filed Under: beer, bruce schlafly, opposition, phyllis schlafly, tom schlafly, trademark, uspto

Schlafly Beer Trademark App Brings Out All The Egomaniacal Schlaflys In Existence

from the go-schlaf$#@-yourselves dept

I don't get it, but the never ending list of trademark disputes centered around alcohol just continues to grow. Previously we've seen universities going after small brewers over common sports terms, disputes over completely dissimilar lables, and depictions of zombie trademark lawyers doing what zombie trademark lawyers do: kill the living. But this one is a whole new level of egotistical crazy.

For a couple of decades, the St. Louis Brewery Co., co-founded by Tom Schlafly, has been selling Schlafly beer. Phyllis Schlafly, Tom's Aunt, is a special kind of "conservative commentator" and has spent a couple of decades proudly setting back the women's rights movement, railing against marriage equality, and insisting that this whole "being Latino" thing in America is just a fad and Republicans need pay no mind. Now the family is entering into a trademark battle in which Phyllis doesn't think Tom should be able to trademark his beer because, essentially, she's totally a big deal. Seriously, that's what her claim amounts to.

The Schlafly beer maker applied for the trademark on the use of the brand name in 2011; Phyllis Schlafly filed a notice of opposition with the U.S. Patent and Trademark Office in September 2012. Settlement talks have failed to produce a resolution, and neither side appears ready to back down...Phyllis Schlafly, who declined to be interviewed for this story, argues that the word Schlafly has no usage or meaning other than as a last name, and she lays claim to it.

“In connection with its usage as a surname, it has the connotation of conservative values, which to millions of Americans (such as Baptists and Mormons) means abstinence from alcohol,” her filing with the trademark office states. “An average consumer in Saint Louis and elsewhere would think ‘Schlafly’ is a surname associated with me, and thus the registration of this name as a trademark by Applicant should be denied.”

Got that? Phyllis Schlafly is well known, therefore everyone's going to look at a beer with her last name on it and immediately think of this smiling face.
See the absence of eyeballs? It's because she doesn't have a soul. Now if it seems pretty ridiculous that a brewery that's been selling a beer under the name of one of its founders for over two decades suddenly has to face a trademark opposition on their brand from an elderly woman going all Mormon and Baptist on its ass, well, you're not wrong, but that isn't even the best part. No, the best part is this.

“The full federal trademark has nothing to do with our right to sell beer, and no one is contesting our right to do that,” Tom Schlafly said. “We sell the equivalent of 20 million bottles of beer a year, and we want to keep someone else from selling beer and calling it Schlafly."

Get it yet? Phyllis Schlafly is contesting the trademark application because she doesn't like her name being associated with a beer brand. However, denying the mark wouldn't keep Tom Schlafly from using the name on his beer labels, he just wouldn't be able to register a trademark for it. In other words, the entire ultimate goal driving this opposition won't be attained by the opposition. Way to go, Phyllis! Other Schlaflys have been coming out of the woodwork since, including Andy Schlafly, Phyllis' son, and Bruce Schlafly, an orthopedic surgeon and also Phyllis' son, have since come out in opposition to the mark.

Fortunately, the brewery is likely to win.

Yvette Liebesman, an assistant professor of law at St. Louis University who teaches intellectual property law, said Schlafly beer has a strong case because the company has used the name in commerce for so long.

“The very first time they started selling beer from the tap, that is when they got rights to the mark,” she said. “They certainly have been around long enough to acquire a secondary meaning.” To get the trademark, Schlafly beer must show its goods are not likely to be confused with goods sold by others, Liebesman said. Phyllis Schlafly “would have to prove that there’s a likelihood that people would confuse the two, and I think that’s going to be tough,” Liebesman said.

But, like, Phyllis Schlafly is going to be so upset! Oh well, I'll just drown my sorrows in some brew. One Schlafly, please!

Filed Under: beer, name rights, phyllis schlafly, schlafly, tom schlafly, trademark
Companies: st. louis brewery co.