July 03, 2014

Anheuser-Busch Lays Claim To "Natty" For Beer But What About "Natty Boh"?

by Guest Blogger

The latest "brewhaha" over trademark bullying erupted last month when Anheuser-Busch opposed the trademark application for NATTY GREENE'S filed by North Carolina craft brewer Natty Greene's Brewing Company. Anheuser-Busch claims superior rights in all NATTY trademarks for beer based on its pre-existing NATTY LIGHT trademark registration. "Natty Light" refers to the Natural Light brand of beer, which appeals to a certain non-discriminating segment of the beer drinking population.

Anheuser-Busch's trademark opposition has led to a hue and cry among craft beer aficionados, many of whom argue that Anheuser-Busch will actually benefit from the association with Natty Greene's. After all, NATTY LIGHT beer currently maintains an aggregate score of D- on beer rating site BeerAdvocate.com, while being listed as the worst beer in the world by RateBeer.com. To maintain trademark rights, however, trademark owners like Anheuser-Busch must police their marks and take appropriate action against trademark violations. Anheuser-Busch could have easily filed an expensive trademark infringement lawsuit, but instead it opted to initiate an administrative proceeding at the U.S. Patent and Trademark Office to oppose the NATTY GREENE'S trademark application. This appears to be a measured response to an application that could arguably diminish the value of the NATTY LIGHT brand.

This isn't the first time that Anheuser-Busch has opposed a NATTY trademark application for beer. It got in a similar dispute over the trademark application for NATTY BOH a few years ago. "Natty Boh" is the nickname for Baltimore's beloved National Bohemian beer. Natty Boh was first brewed in Baltimore in 1885 by the National Brewing Company. It has been made by Pabst Brewing Company since the 1990's.

For those of us from Baltimore, Natty Boh's one-eyed mascot - Mr. Boh - is as recognizable as Mickey Mouse. And like Mickey Mouse, Mr. Boh is protected by a U.S. federal trademark registration. Here is an example of trademark use on a label from 1950:

04 03 51 Boh

Mr. Boh has also appeared on TV. Check out this vintage commercial (and try not to let the jingle get stuck in your head for the rest of the day):

On March 23, 2006, Pabst filed a federal trademark application for NATTY BOH for beer. The examining attorney did not find any similar registered or pending marks in his search of the USPTO records, and the application was published for opposition on January 23, 2007. Like the application for NATTY GREENE'S, the application for NATTY BOH was opposed by Anheuser-Busch on the grounds that it was confusingly similar to the pre-existing registration for NATTY LIGHT.

In response to the opposition, Pabst claimed priority of use for the NATTY BOH trademark. Pabst argued that NATTY BOH had been used in connection with beer since at least as early as 1959, which long pre-dates Anheuser-Busch's use of the NATTY LIGHT trademark. This is the trademark law equivalent of a reverse judo chop. By opposing the NATTY BOH trademark application, Anheuser-Busch ended up jeopardizing its NATTY LIGHT registration.

The parties ultimately entered into a confidential settlement agreement so we are only left to speculate as to the terms. We know that Pabst withdrew the NATTY BOH federal trademark application, but it continues to use the trademark on its website and in other marketing efforts. Presumably, Pabst did not agree to this concession out of the goodness of its own heart. Perhaps some money changed hands (or at least some Ravens season tickets). Regardless, this outcome makes sense since Anheuser-Busch makes nationwide use of the NATTY LIGHT mark while 90% of Natty Boh's sales are in Baltimore.

So can Mr. Boh save the trademark application for NATTY GREENE'S? Probably not. Natty Greene's cannot claim priority of use for "Natty" like Pabst. Thus, the North Carolina craft brewer will be left to argue that NATTY GREENE'S is not likely to be confused with NATTY LIGHT, which is a tall order. Given the difficult road ahead, this dispute is likely to settle. At a minimum, the settlement will result in the trademark application for NATTY GREENE'S being withdrawn. The real fight will be over whether Anheuser-Busch requires Natty Greene's to stop all uses of the NATTY mark. This would require Natty Greene's to change the name of its business to, say, Nathanael Greene's. Given Anheuser-Busch's efforts to be the nattiest of all beers, I would bet a 6-pack that this dispute results in a name change. Any takers?

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