Craft Beer Trademarks: Nitro Edition
A controversy has arisen regarding Left Hand Brewing, a Colorado-based craft brewer, and their attempt to protect the word NITRO as a trademark for some of their beers. What’s behind this apparent attempt to monopolize a common term in the beer industry – and have Anheuser-Busch and the producer of Guinness arisen as the unlikely saviors?
Let’s start with a question – what is a “nitro” beer? Most beers are carbonated with simply carbon dioxide (hence, carbonated.) Beers charged with a mix of nitrogen gas and carbon dioxide, typically referred to as “on nitro” or “nitrogenized,” have a creamy texture and pronounced sweet flavors.
Left Hand has been able to bottle nitro beers through an innovative process. I’m all for this type of experimentation. However, I’m not sure that trademark law is the right way to enforce their rights.
On September 25, 2013, the brewer filed two trademark applications with the United States Patent & Trademark Office: one for MILK STOUT NITRO and one for simply NITRO. Both applications are in class 032 and were filed in connection with the following goods: “Brewed malt-based alcoholic beverage in the nature of a beer.” Note that this is a long, lawyerly way of just saying “beer” – the applications didn’t refer in any way to a specific bottling process.
Despite the fact that any craft beer afficionado could have verified that “Milk Stout Nitro” and “Nitro” are common industry terms for a type of beer and the gas that gives that beer its texture, the USPTO’s Examining Attorney who was assigned to these applications let them proceed without objection. As Eric Gorski, writing for the Denver Post on this story, correctly pointed out:
The government can reject marks that are “merely descriptive,” meaning a term describing “an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services,” according to the Trademark Manual of Examining Procedures (section 1209.01(b) if you’re reading along).
I would add that TMEP Section 1209.01(c) also states:
Generic terms are terms that the relevant purchasing public understands primarily as the common or class name for the goods or services…These terms are incapable of functioning as registrable trademarks denoting source, and are not registrable on the Principal Register under §2(f) or on the Supplemental Register. (Emphasis mine.)
OK, the Examining Attorney missed this one (or two), so what happens now? After a mark goes through the Examining Attorney’s review, it gets published in the USPTO’s Official Gazette. Let’s let the USPTO explain the next steps:
After the mark is published in the Official Gazette, any party who believes it may be damaged by registration of the mark has thirty (30) days from the publication date to file either an opposition to registration or a request to extend the time to oppose. An opposition is similar to a proceeding in a federal court, but is held before the TTAB. If no opposition is filed or if the opposition is unsuccessful, the application enters the next stage of the registration process.
Essentially, anyone who thinks this trademark registration shouldn’t be granted can oppose the application during the 30 day window. In this case, both Anheuser-Busch, producer of Budweiser among other notable products, and Diageo Ireland, owners of Guinness, filed requests to extend the time to oppose Left Hand’s applications for 90 days. This is a common part of the USPTO opposition process – 30 days often isn’t enough time to gather the evidence required to file the Notice of Opposition. They are now on the clock to either oppose the applications or to let them proceed to registration without opposition.
On March 20, Left Hand posted a statement on their website about the NITRO trademark controversy – you can read it here. In part, they state:
We are seeking to protect the name of our best selling products that we have spent a significant amount of time and resources to develop, not the style – not nitrogenated beers. Unfortunately, much of what we are seeing being picked up by media and shared recently is to the contrary. We do not wish to halt craft innovation or stop nitro-style beers from being produced or poured. We are simply trademarking the name our bottled beer has become so well known for. We believe another beer named simply, “Nitro” or “Milk Stout Nitro”, would confuse the public and dilute the strength of the brand we have worked so hard to build.
…
So while trademarking a name is not uncommon in the industry, we understand that the Nitro trademark can raise many questions. Left Hand’s motivation is not to hinder competition but to protect the future of our brand, our employees and the integrity of products. We hope that our fans and industry friends will see by our actions that our intentions are in line with being a leader in the craft industry that continues to support our community and offer quality beers that provide the ultimate drinking experience.
If Left Hand doesn’t decided to abandon their applications, it looks like A-B and Diageo will oppose them, and I’d say their chances of success are strong. However, craft brewers shouldn’t assume that companies like A-B will always be on their same side. Craft brewers – or their various guilds and other groups – should get in the habit of monitoring the Official Gazette for future issues along the same lines.
