Day 654: Craving A Bud? Better Watch What You Pour

originally published October 15, 2013

In the bustling city of České Budêjovice in the southern part of the Czech Republic, there exists a strange reminder of the mammoth reach of the American justice system. This little city of about 96,000 people is known in German and English as ‘Budweis’. Sure, they have an Academy of Sciences and the University of South Bohemia, but the place is more famous for its beer.

Czechs take their beer notoriously seriously. The country boasts the highest per capita beer consumption in the entire world, a fact that no will no doubt shock anyone who brags about the mighty beer muscles of some other ethnicity (Irish, German, Wisconsonite, whatever). The beer that gets exported from this nation tends to have a refreshing little hoppy bite, followed by a smooth and thirst-annihilating finish. They’re usually pale lagers worthy of a tall skinny glass to boast its contents’ frothy afro.

So how did this little city get embroiled in a legal feud with an American corporate giant? This is the oily murk of trademark law, a quirky booth in the back corner of the legal diner. It’s most certainly essential – we don’t want poor Ronald McDonald’s classic golden arches to be cheapened by some muffler shop that wants to cash in on the icon’s familiarity. But sometimes the world of trademark law gets a little goofy.

In 1795, years before Anheuser and Busch unleashed their Clydesdales upon the breaks between Super Bowl quarters, a group of local brewers started up Bürgerliches Brauhaus Budweis, which is German for ‘Civic Brewhouse Budweis’. The beer became known as ‘Budweiser’ because it was made in Budweis, just as the beer made in Plzen (or ‘Pilsen’ in English) is known as Pilsner. They started exporting it to America around 1875.

Right around the same time, Adolphus Busch married Eberhard Anheuser’s daughter and began working at the family brewery. Adolphus toured around Europe in search of the next big thing, and in 1876 he introduced what would become America’s first national beer brand, named for the style he was trying to emulate. Budweiser became the product that vaulted Anheuser-Busch to a household name. So when the original concoctors of Budweiser-style beer began peddling their brew around the US, it became a matter of contention.

In 1895 the Budweiser Budvar Brewery, also from the city of Budweis, started selling their product in the same market. Budvar and Bürgerliches insisted that ‘Budweiser’ was a generic term. In 1907, Anheuser-Busch took the matter to court. Theirs was the beer selling by the vat-load around the country, and they didn’t want people to buy this foreign stuff thinking it was the same thing. The deal put into place stated that the American Budweiser brand had exclusive rights over the name at home, but it would be marketed as ‘Bud’ or ‘Anheuser-Busch B’ around Europe.

The Czech brands marketed their goods under the names ‘B.B. Bürgerbrau’ and ‘Czechvar’ in America. Everyone was happy, and nobody was stepping on anyone’s toes, except in the UK and Ireland where for some reason all three brands show up on the shelves under the name ‘Budweiser’. In 2010, Budvar won the battle for continental Europe, earning the legal right to exclusivity over the Budweiser name across the entire European Union. There are still trademark issues around the world between these two companies – the battle between tradition and the corporate monolith continues.

Where one American corporation has succeeded over a European tradition, another has laid a successful claim over a portion of the rainbow. There is a specific color, something in the neighborhood of robin’s egg blue and specifically defined by the Hex designation #81D8D0, that belongs to Tiffany & Co. When Tiffany published its first Tiffany’s Blue Book in 1845, this shade of blue was on the cover. They continued to use it in all promotional materials (and of course their trademark jewelry boxes), and earned the official Pantone custom color designation of 1837 (named for the year the company was born).

If you’re looking for a Pantone swatch of Tiffany Blue because you think it would make for a fine hue for your new loveseat or for the paint on the walls of your baby’s room, you’d be out of luck. Tiffany Blue is a trademark. They literally own the color.

You have probably used a pair of Fiskars scissors, made by a Finnish brand that’s been snipping away at the market since 1649. That orange on the plastic handle is also a trademarked color. This phenomenon came to widespread acceptance in 1995 during the US Supreme Court case of Qualitex Co. vs. Jacobson Products Co. Inc. This was a case in which Jacobson tried to market dry cleaning pads that were the same color of green-gold as those produced by Qualitex.

Dry cleaning pads. Try as I might, I can’t picture what a dry cleaning pad looks like. We’re not talking about household recognition here, this is extremely industry-specific. The Ninth Circuit Court of Appeals had nixed the notion of color being considered as a trademark, but when the case was plopped at the feet of the highest court in the land, the decision was unanimous. The law as it was written was extremely broad in terms of what could and could not be trademarked. There was simply no reason to deny Qualitex their right to an exclusive color.

In 1987 and 1988 the Los Angeles Lakers won back-to-back NBA championships. It was an exciting time to be a Lakers fan, and all over southern California people were calling for a three-peat. Coach Pat Riley heard his fans, and reacted as any smart coach would: he trademarked the word.

Riles & Co., Pat’s corporate entity, landed on a huge score with this move. Sure, the Lakers blew the 1989 season, but when Michael Jordan’s Chicago Bulls were headed for their third straight a few years later, Riley made a ton of money off any shirt, mug or ashtray with the word ‘three-peat’ on it. Cases have been brought forward as recently as 2001 in an effort to overturn this trademark, but the paperwork was all filed properly, and Pat will continue to make money off it anytime some team wants to boast via marketing materials about being on the verge of winning three straight.

It doesn’t matter that the term has been found in popular culture since 1930. It was uncommon enough and so tightly bonded with the world of professional sports that Pat Riley deserves nothing but praise for swooping in and claiming the word as his own property.

And such is the utter balls-out weirdness of trademark law.

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