Craft brewer, Anheuser-Busch spar over title of 'No. 1 beer'
(Published Friday, July 13, 2007 10:25:53 AM CST)
A d v e r t i s e m e n t
By Emily Fredrix Associated Press
MILWAUKEE - Being tops is everything at Capital Brewery.
The craft brewer's six-packs, 12-packs and individual bottles say "America's No. 1 Rated Brewery." Even receptionists welcome callers with that message.
But Anheuser-Busch Cos. disagrees. The world's largest brewer is contesting Capital's attempt to trademark the term, saying it shouldn't have the exclusive right to use it.
Capital Brewery Co., Inc. has used the title since early 1999, when it took the top spot for a U.S. brewery in the Beverage Testing Institute's 1998 rankings. The brewery based just outside of Madison placed seventh overall in the international contest that evaluated brewers' portfolio of beers.
Capital includes the 1998 BTI award in its logos and wherever else the No. 1 slogan is printed. T-shirts, hats and even signs pointing to the brewery bear the phrase, said Carl Nolen, president and CEO of the brewery that distributes mainly in Wisconsin and surrounding states.
The company decided to apply for a trademark with the U.S. Patent and Trademark Office in September 2005.
"In our marketing area, if you say "America's 1 Rated Brewery" consumers, retailers and wholesalers know you're talking about Capital, and we feel it's very important to protect it," Nolen said.
About six months after Capitol applied, the application was posted, which means other brewers could oppose the trademark. Anheuser-Busch did just that, saying the slogan is deceptive and a description that lacks meaning.
Anheuser-Busch also pointed out in its filing with the patent office that it is the largest brewer and marketer of beer in the U.S. Indeed, its mainstay brew, Budweiser, is known as the "King of Beers."
The trademark fight will take months. Capital responded this month to questions from Anheuser-Busch about its business and use of the slogan. Now Anheuser-Busch has until the middle of October to respond to that. Norman Farnam, Capital's lawyer, said he expected the Trademark Trial And Appeal Board, part of the Patent Office, to hold a hearing on the matter in April 2008.
To get a trademark, Capital will have to prove it has used the slogan for at least five years and show that customers link the phrase to its products, said Craig Fieschko, an adjunct professor at the University of Wisconsin Law School.
"You do have difficulty registering it unless you use it so long and to such an extent that you become renowned for it," he said.
He pointed to the appeals board's refusal to grant The Boston Beer Co., brewer of popular Sam Adams, rights to the phrase "The Best Beer In America" in the 1990s. The brewer based the phrase on its showings at a national beer festival, but the board said that was merely descriptive and could not be trademarked.
Anheuser-Busch said in a statement that it doesn't object to Capital using the phrase, it just doesn't want the brewery to trademark it.
"Many great brewmasters across the country are entitled to describe their operations glowingly based on different criteria, and our opposition to this trademark application is intended to help preserve their rights to do so," the St. Louis-based brewer said.
Farnam said Anheuser-Busch is just trying to protect its status as the "King of Beers" and save the slogan for its own future use.
The Beverage Tasting Institute hasn't rated brewers - as opposed to individual beers - since 1998. Jerald O'Kennard, the Chicago-based institute's director, said brewers enter its competitions so they can earn titles to use in marketing. They like to say they have a "Gold Medal" for a particular beer, he said.
There's no disputing Capital won the award, O'Kennard said, but the market changes and awards for any year in question speak only to that year.
"It's not forever and ever," he said. "You have to take a look at everything all the time."
Nolen said the age of Capital's title doesn't diminish its merit.
"When you're elected to the Hall of Fame, that's a lifetime recognition. When you're MVP, that's a lifetime recognition and it's not just something that goes away," he said. "Other breweries have used distinctions like that forever."
