Trademark Sheriff Anheuser-Busch Opposes CHOCOLATE WHEAT

Considering trademarking a descriptive name for your beer?  Not on Anheuser-Busch’s watch.

Anheuser-Busch (“A-B”), themselves the owners of 507 of their own trademark registrations in the US alone, have opposed an attempt by Short’s Brewing Company (“Short’s), out of Bellaire, Michigan, to register the name CHOCOLATE WHEAT in connection with “beer, ale, and porter.”  This is not the first time they have tried to block a craft brewer’s attempt to trademark a “descriptive” term (see their opposition of NITRO from earlier this year).

In support of the opposition, A-B alleges, “The individual terms ‘chocolate’ and ‘wheat’ as well as the phrase ‘chocolate wheat’ are descriptive of ingredients, qualities, characteristics, or features of the goods identified in the Application….  Accordingly, Applicant’s applied-for mark, CHOCOLATE WHEAT, is merely descriptive of Applicant’s goods.”  While I’d like to side with the well-regarded craft brewer that hails from my home state, I tend to agree with A-B.

According to § 2(f) of the US Trademark Act, marks that are merely descriptive of the goods or services may not be registered on the Principal Register absent a showing of acquired distinctiveness.  In Short’s application for the mark back on November 20, 2013, they did allege that the mark had acquired distinctiveness through their “exclusive and continuous use in commerce … for at least five years….”  In support of the allegation, Short’s provided screenshots from their website showing advertising of the mark.

A-B’s position is that such evidence is insufficient to show secondary meaning.  Another issue that does not appear to have been addressed by A-B in their Notice of Opposition is whether Short’s has, indeed, enjoyed exclusive use in commerce of the name CHOCOLATE WHEAT.  A-B themselves released a CHOCOLATE WHEAT variation of their Shock Top product last fall, apparently before Short’s filed their application.  Also, Weyermann, a producer of specialty malts for brewing, appears to have been selling a chocolate wheat malted grain product in this country since 2012.

This case may take a year or more to play out, depending on whether Short’s intends to see this case through (there is little doubt that A-B has the resources available to see it through).  Short’s deadline for filing an answer to the opposition is September 22, 2014.

About Dan

Daniel Christopherson of DCBrewLaw.com is a beer and trademark attorney at Lehrman Beverage Law. He is an avid craft beer enthusiast who helps new and established breweries develop their business models, comply with the TTB and FDA, and protect their intellectual property.
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