Further Update on Anchor Steam v. City Steam

As I previously blogged, the lawsuit filed by Anchor Steam against City Steam was recently settled. See: http://trademarkbar.blogspot.com/2014/08/anchor-steam-vs-city-steam-update.html. However, since the settlement agreement was not filed with the Court, it was unclear what the terms of settlement were. 

We now know what two of those terms were:
(i) City Steam agreed to withdraw its trademark application for CITY STEAM; and
(ii) Anchor Steam agreed to withdraw its Opposition to City Steam's application.

This information was revealed in a joint motion that the parties filed this week with the TTAB. See: http://ttabvue.uspto.gov/ttabvue/v?pno=91209590&pty=OPP&eno=10

Interestingly, in the motion, the parties requested that the Board terminate the Opposition proceeding, but they did not specify whether the Opposition should be dismissed with or without prejudice, which leaves open the possibility for a future dispute. See TBMP 605.03(a) ("If the proceeding is to be dismissed, the stipulation should specify whether the dismissal is to be with prejudice or without prejudice. If no specification is made, the Board, in its action dismissing the proceeding, will simply state that the proceeding is being dismissed “in accordance with the agreement of the parties.” However, if the agreement itself also fails to indicate whether the dismissal is to be with or without prejudice, at some later time a dispute may arise between the parties as to whether they intended the dismissal to be with or without prejudice.")

FLOWER POWER v. FLOWER CHILD

There have been a number of craft beer trademark battles recently, but this may be the first involving two hippie-inspired names. The dispute features a New York brewery, Ithaca Beer Company, against a Massachusetts brewery, Cambridge Brewing Company.

Ithaca Beer Company has been selling its "Flower Power" IPA since 2000, and obtained a federal registration for the mark in October 2010. [Full disclosure: I'm a big fan of this beer.]


Cambridge Brewing Company has been selling its "Flower Child" IPA since September 2010, and filed an application to register this mark in January 2014.


The FLOWER CHILD application was recently approved by the Trademark Office and published for opposition. On September 17, 2014, Ithaca Beer Company opposed the application, alleging that there is a likelihood of confusion between the two marks. (See: http://ttabvue.uspto.gov/ttabvue/v?pno=91218388&pty=OPP) While the Notice of Opposition features the usual arguments concerning the similarities between the marks and the goods, it also has some interesting allegations about Cambridge Brewing Company's bad faith in adopting its mark. Specifically, Ithaca alleges that:

• "[I]n or prior to 2010, a Cambridge Brewing Co. brewer contacted an Ithaca Beer Co. brewer with a question about how FLOWER POWER IPA was made. The Ithaca Beer Co. brewer provided the Cambridge Brewing Co. brewer with the recipe for FLOWER POWER IPA, which the Cambridge Brewing Co. brewer used as inspiration for its FLOWER CHILD IPA.

• An interview of a former Cambridge Brewing Co. brewer, which was published on www.caskandculture.com, states that the “name ‘Flower Child’ stands as a tongue-in-cheek nod to the recipe that helped it blossom,” i.e., FLOWER POWER.

• Likewise, a September 22, 2010 post by Cambridge Brewing Co. on its Facebook page states that FLOWER CHILD IPA is an “homage” to Ithaca Brewing Co.’s FLOWER POWER.

• Cambridge Brewing Co. named its beer FLOWER CHILD specifically in reference to Ithaca Beer Co.’s FLOWER POWER.

• Cambridge Brewing Co. named its beer FLOWER CHILD in order to play off and trade on the success of Ithaca Beer Co.’s FLOWER POWER beer."

Based on an initial review of the allegations, it looks like it will be an uphill battle for Cambridge Brewing Co., especially in light of the TTAB's recent decision in the PURPLE HAZE v. SUNNY HAZY case. (See: http://thettablog.blogspot.com/2014/09/sunny-haze-confusable-with-purple-haze.html)

Anchor Steam vs. City Steam Update

The lawsuit filed by Anchor Steam against City Steam has apparently been settled. (For background on the dispute, see: http://trademarkbar.blogspot.com/2014/02/anchor-steam-vs-city-steam-can-generic.html)

The following entry was uploaded to Pacer today:

"ORDER. A settlement conference was held on August 27, 2014. The case is settled. The parties will file the appropriate papers within 30 days. Signed by Judge Thomas P. Smith on August 28, 2014.(Slitt, M.) (Entered: 08/28/2014)"

I'm glad to see that the parties were able to reach an amicable resolution. It will be interesting to see what, if any, limitations on the use of the "Steam" term City Steam agreed to.

Colorado Breweries Battle Over ELEVATION Trademark

The latest craft beer trademark dispute comes from Colorado, where Elevation Beer Company ("EBC") and Renegade Brewing Company are fighting over the ELEVATION trademark.







The dispute began in early April when EBC sent Renegade a cease and desist letter claiming that Renegade's use of the name "Elevation" in connection with beer--Renegade has a beer named "Elevation Triple IPA" (see: http://renegadebrewing.com/brews/elevation-ipa/)--infringed its rights in the ELEVATION mark. EBC noted in the letter that it has a trademark registration for the mark ELEVATION BEER COMPANY, and that it began using its mark prior to the date on which Renegade first started using the "Elevation" term.


Renegade Files Cancellation Action:
Renegade refused to accede to EBC's demands, and instead decided to go on the offensive. In late April, it filed an action before the Trademark Office to cancel EBC's registration. As grounds for cancellation, Renegade alleges that EBC committed fraud in the procurement of its trademark registration in two ways:

(1) By falsely declaring that "no other person...has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely...to cause confusion..."  In other words, Renegade claims that EBC falsely alleged that it was the exclusive user of the ELEVATION mark in connection with beer. As support for this allegation, Renegade cites various other breweries that were using the "Elevation" term in connection with beer prior to the filing date of EBC's application, including Elevation66 Brewing Company (ELEVATION66), Beach Chalet Brewery (ELEVATION ZERO ESB), Full Sail Brewing Company (FULL SAIL ELEVATION), and Breckenridge Brewery (BRECKENRIDGE ELEVATION). [NOTE: this will likely be an uphill battle. See: http://thettablog.blogspot.com/2011/01/ttab-refuses-to-cancel-atls-baddest.html and http://thettablog.blogspot.com/2013/08/ttab-summarily-dismisses-two-fraud.html]

(2) By falsely claiming that its mark was in use "in commerce" as of May 19, 2012. In order to obtain a federal trademark registration (with one limited exception), the applicant must affirm that the mark is in use "in commerce" in the US, i.e., in commerce which may lawfully be regulated by Congress. The traditional way to do so is to file a declaration that the mark is in use on goods that have been sold in inter-state commerce, along with a specimen.  [Though the Trademark Office and the Courts often take a lenient view of what qualifies as "commerce" under the Lanham Act. (e.g. intrastate use that directly affects a type of commerce that Congress may regulate. See Larry Harmon Pictures Corp. v. Williams Restaurant Corp., 929 F.2d 662 (Fed. Cir. 1991) (mark used to identify restaurant services rendered at a single-location restaurant serving interstate travelers is in “use in commerce”)]  Here Renegade alleges that EBS's declaration was false because EBC did not begin selling its beer across state lines until December 2013.


EBC Files Lawsuit:
EBC fired back at the end of last week by filing a trademark infringement lawsuit in Colorado federal court. It alleges that Renegade's use of the ELEVATION mark is infringing its trademark rights, and in the Complaint EBC states that actual consumer confusion has already occurred as a result of Renegade's use of the ELEVATION mark.  A copy of the complaint can be found here:
http://www.scribd.com/doc/223683314/Elevation-Complaint

Rogue vs. Rogue's Harbor

Oregon Brewing Company, the company behind the Rogue Brewery in Oregon, this week filed a lawsuit against a micro brewery in upstate New York over its use of the term "Rogue" in connection with beer.

Rogue Brewery is one of the largest craft breweries in the US (it was #27 in the latest Brewers Association rankings). It has been using the ROGUE name since 1989 and owns a federal trademark registration for the mark.




Rogue's Harbor Brewing is a micro brewery located outside of Ithaca, NY on the Finger Lakes Beer Trail. According to its website,
"We started brewing in 2011 offering 5 of our own craft beers... Every batch we brew produces 4 kegs offering plenty of beer to go around for the restaurant or for growler fills to take with you."

See: http://www.roguesharbor.com/our-beer#.U1F72FclWoY



It appears that the brewery is connected to the Rogue's Harbor Inn, which is a bed & breakfast that has been open since 1830. See: http://www.roguesharbor.com/history#.U1F9DFclWoY


A copy of the complaint can be found here:
http://www.scribd.com/doc/219036773/Rogue-Complaint

A Dog Fight

In case you thought you had heard it all when it comes to trademark battles between craft breweries, here is something for you. Yesterday, Thirsty Dog Brewing Company filed a lawsuit in Ohio Federal Court alleging that Sleepy Dog Brewery's use of the mark LEG HUMPER infringes its rights in the mark OLD LEGHUMPER.








-A copy of the complaint can be found here:
http://www.scribd.com/doc/219014788/Thirsty-Dog-Complaint

City Steam Goes on the Offensive Against Anchor

This is a brief update on my previous post concerning the lawsuit filed by Anchor Brewing against City Steam. (see: http://trademarkbar.blogspot.com/2014/02/anchor-steam-vs-city-steam-can-generic.html)

Last week City Steam filed an Answer to Anchor's Complaint, and it came out swinging. In addition to asserting a range of defenses, City Steam filed a number of counterclaims, including:

• Seeking a declaration that the terms "Steam" and "Steam Beer" are generic and that Anchor has no valid trademark rights in these words on their own; and 
• Claiming that Anchor has violated the Connecticut Unfair Trade Practices Act by making bad-faith trademark claims against City Steam knowing that the terms "Steam" and "Steam Beer" are generic, and by falsely claiming to the public that the word "STEAM" (or the phrase "ANCHOR STEAM") is a registered trademark.

The complete Counterclaims read as follows:

Declaratory Judgment of Invalidity:

• The standard character word(s) “STEAM” and/or “STEAM BEER” are ordinary common words which are descriptive and generic. “STEAM” and “STEAM BEER” are not inherently distinctive. The word “STEAM” is functional in nature, particularly as a method to manufacture beer which is widely used in the public domain.
• The word(s) “STEAM” and “STEAM BEER” in standard character form is generic and cannot be transformed by ANCHOR into a trademark.

Declaratory Judgment of Non-Infringement:

• [City Steam has] not used the “STEAM MARKS”.
• ANCHOR has no valid rights of exclusive control over the generic word(s) “STEAM” and “STEAM BEER”. ANCHOR expressly withdrew its application for trademark registration of the words “STEAM BEER” in standard character form, and restricted for applying for registration in the future. ANCHOR surrendered the words “STEAM BEER” to the public domain. ANCHOR has no valid and sustaining trademark rights in the standard character words “STEAM” or “STEAM BEER”.

Declaratory Judgment of Unenforceability:

• The generic, descriptive, and functional nature of the words “STEAM” and “STEAM BEER” in standard character form make them unenforceable as a trademark.
• ANCHOR’s prior admissions prejudice its right to any claim that the words “STEAM” and “STEAM BEER” in standard character form are registerable as trademarks.

Violation of the Connecticut Unfair Trade Practices Act:

• ANCHOR has in bad-faith asserted trademark claims against [CITY STEAM] knowing that it had expressly withdrawn its trademark application and had prejudiced the rights it now asserts.
• ANCHOR has repeatedly asserted similar claims against numerous third parties who have utilized the word “STEAM” or the words “STEAM BEER” in association with the marketing or sale of beer.
• ANCHOR has made false claims to the public by advertising the word “STEAM” and/or the phrase “ANCHOR STEAM” with the designation of a trademark registration symbol when it holds no valid trademark registrations for said word or phrase.
• ANCHOR’s conduct is immoral, unethical, oppressive, or unscrupulous.
• ANCHOR’s conduct has caused and causes...CITY STEAM substantial injury and an ascertainable monetary loss.
• ANCHOR has engaged in a pattern of unfair and deceptive acts and practices in violation of the Connecticut Unfair Trade Practices Act by asserting these bad-faith trademark claims against [CITY STEAM].

See: http://www.docstoc.com/docs/document-preview.aspx?doc_id=168180920