Schlafly Brewery Shows How to Make a Sour Blonde: Wins Trademark Dispute Against Phyllis Schlafly

It is not often that craft beer lovers and ordinary St. Louisans will take interest in a trademark dispute. However, one such case caught the attention of both demographics. In this regard, long-standing conservative activist, Phyllis Schlafly, and her son, Dr. Bruce S. Schlafly, filed oppositions to the application filed by the St. Louis Brewery, LLC (manufacturers of Schlafly beer) to register the word SCHLAFLY for use in connection with beer products. The Schlaflys filed separate notices of opposition to the brewery’s registration of the mark on the ground that the word SCHLAFLY is primarily merely a surname under the trademark law and had not acquired distinctiveness to be eligible for registration. As an intellectual property attorney and an aficionado of good beer, this case really sparked my interest (As a person familiar with Schlafly products since 1991, I have to confess some bias). Nevertheless, the oppositions struck me as legal backwash.

In a decision that surprised no one who has remotely followed the craft beer industry, on August 4, 2016, the Trademark Trial and Appeal Board of the United States Patent and Trademark Office dismissed the oppositions filed by the Schlaflys.

From my standpoint, the Schlaflys’ arguments that the name SCHLAFLY had not acquired distinctiveness for beer products seemed like it was going to be an uphill battle. After all, the brewery was obviously going to have some pretty compelling evidence to untap, and I was more interested in what evidence the Schlaflys had that would demonstrate their position. The answer to that question was, “not much.” On the other hand, the brewery adduced (and the Board noted) evidence of its 25-year history of making Schlafly-branded beer along with its revenues, marketing efforts, advertising spend, production volumes and accolades received for its beer products sold under the SCHLAFLY name. In addition, the Board was given numerous third-party articles in which the brewery was not referred to by its formal name, but by the SCHLAFLY name. Practically speaking, the Schlaflys’ assertion that the name had not acquired distinctiveness was greeted like an empty keg at a frat party. The Board found, what beer drinkers in many parts of the country and we in St. Louis have known for a long time:

We find that the evidence of record sufficiently establishes that Applicant’s mark SCHLAFLY has acquired distinctiveness with respect to Applicant’s goods. Over a period of almost 25 years Applicant has conducted its business in such a way as to establish an association between the name SCHLAFLY and its beer; and the evidence shows that a segment of the public has taken note of Applicant’s goods under its mark and would view the designation SCHLAFLY as an indicator of the source thereof.The end result? The trademark office dismissed the Schlaflys’ opposition. Again, no one should be surprised by this result.

Don Kelly is a St. Louis attorney who concentrates his practice in the areas of patents, trademarks, copyrights and business litigation.