Creativity is Key
One client had a fantastic pumpkin beer called Pumpion. The U.S. Patent and Trademark Office (PTO) initially refused on the grounds that Pumpion was descriptive and was a synonym for pumpkin. It turns out that pumpion was the word for pumpkin until the early 1800s, at which point the use of pumpkin increased dramatically, and the use of pumpion declined. We showed this to the PTO using Google’s Ngram, which allows users to plot the frequency of words used in the English language. By plotting the use of pumpion and pumpkin since the 1500s, we were able to show that pumpion has been obsolete since the mid-1800s and that it is no longer a descriptive term. We also searched Westlaw, a legal resource, and searched “pumpion” and came up with zero hits. When we searched “pumpkin” we came up with roughly 7,000 hits. Using these and other historical sources, our team of microbrewery attorneys in Minneapolis successfully convinced the PTO that pumpion was obsolete, not descriptive, and capable of registration.
The Brand or Bust
Our client Sociable Cider Werks had already opened and ran into a U.S. PTO refusal for its trademark application for Sociable Cider Werks because, the PTO claimed, it was confusingly similar to Ridiculously Sociable, a mark registered for whiskey. We thought the PTO was wrong and sent in a response explaining why – the words surrounding the common word are different, there are far more similar marks that have registered, craft beer clients are sophisticated consumers that pay close attention to brands, and beer is not located in the same part of a liquor store as whiskey. Nonetheless, the PTO upheld their initial refusal. We gave it another shot, going into more detail, citing more marks that registered that are far similar, and finding further support for the sophistication of craft beer consumers. The PTO examining attorney relented, and we got our client’s brand name and logo registered.
The 101 on Self-Distribution
We represent Oliphant Brewing out of Somerset, Wisconsin. They first approached our microbrewery lawyers in Minneapolis with a straightforward question: Can they, as a Wisconsin brewery, self-distribute their beer in Minnesota? They had already asked the Wisconsin Craft Brewers Guild membership and the answer they got was a resounding “no.” We took a look at the law in Minnesota, however, and saw no reason that they could not self-distribute in Minnesota as a Wisconsin brewery.
To make sure we were interpreting the statute correctly, we contacted the Minnesota Alcohol and Gambling Enforcement Division (“AGE”). The response was similar to what our client had heard from others – no self-distribution in Minnesota for Wisconsin breweries. We have spent a lot of time in meetings and on the phone with the staff at the AGE and they are great to work with so we knew they would be open to a discussion on this issue. We let the AGE know that we believed the statute permitted out of state breweries to self-distribute because the only way it would be prohibited would be if part of Minn. Stat. 340A.301 applied to Oliphant and part of it did not apply to Oliphant, but the state could not pick and choose to apply some parts of the statute to out of state breweries and not others. We also argued that prohibiting our client from self-distribution would result in unconstitutional discrimination of interstate commerce.
After reviewing our arguments, the AGE took them to their legal counsel and a few weeks later, we got a message that the AGE concurred with our position and Wisconsin’s Oliphant Brewing could self-distribute in Minnesota. This was a big win for our microbrewery attorneys in Minneapolis, our client, and for Minnesota craft beer drinkers! Keep your eyes open for Oliphant in Minnesota in the next year or so!