Thus was born a trademark case now pending in the U.S. Supreme Court on a petition for review. My guess is that the high court will sip not even a taste of Billy Budd Classic American Ale, but Lisamarie Sapuppo-Bertrand and Bernice Keeney, the entrepreneurs, will have had a good run for their money.
The case will be of interest not only to friends of the malty brew but also to friends of trademark law. This is a highly specialized field, marked by conflicting arguments over law and fact and the weight to be given to public surveys. Here the facts were abundantly clear.
By any objective measurement, the king of American beers is Budweiser, a mild malt produced since 1876 by Anheuser-Busch at breweries around the world. Between 1996 and 2002, during the pendency of this lawsuit, the makers of Bud, Bud Light, Bud Dry and Bud Ice racked up more than $40 billion in sales. The company spends $250 million a year in letting the world know that "This Bud's for You." A Bud blimp floats over the Super Bowl. A Bud team races for the Winston Cup.
The "Bud" trademark has become a hugely valuable property, and its guardian lawyers mean to keep it that way. They did not seriously object when a Cleveland florist appropriated "This Bud's for You" in its advertising. They turned their eyes from "Budd Van Lines" and "Bud Brothers Smoke Supplies."
But at some point Bud's lawyers learned that three bars in New Hampshire were selling — egad, sir! Aargh! They were selling "Billy Budd ale"!
Yes! Lawyers did what lawyers do. In the summer of 2003 Goliath sued David. It was a suit for summary judgment. At a bench trial before U.S. District Judge Joseph A. DiClerico. the incriminating facts soon emerged. The two ladies, operating as Caught-on-Bleu Inc., had innocently contracted for the production of an ale that would bear the name of Melville's hero.
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The eponymous product was to be a classic American ale, "a bountiful blend of malts with a full-bodied English First Gold hop for a spriteful, yet shameless, flavor, not likely to be forgotten." The judge explained: "It was a dark beer." A defense witness testified that no one who would drink Budweiser "would dare think of drinking a micro beer, and the people who drink micro beers wouldn't dare think of drinking a Budweiser." That testimony had the bell-like ring of truth.
The hopeful brewers of Billy Budd produced only 25 kegs. They sold five of these to bars in Franconia, Bretton Woods and Manchester. Gross sales: $385. Net profit: zero. None of these dispiriting facts seemed to mollify the giant. Big Bud had met a test for infringement laid down in 1961: That is, the trademarks for Bud and Billy Budd were similar; the brews were vended to the same potential customers in the same marketplace, and a survey comissioned by Anheuser-Busch obediently produced evidence of consumer confusion.
Taken at several New Hampshire malls, the survey found that 27 percent of the respondents exhibited some confusion: 11 percent believed Budweiser produced the beer, 13 percent believed Budweiser was affiliated with the producer, and 5 percent believed that whoever put out the beer had permission from Budweiser to do so. The court's addition suggests that federal judges may be even worse at arithmetic than newspaper reporters.
So endeth, for now, the short saga of Billy Budd, the brief-lived brew of New Hampshire. Judge DiClerico entered an injunction barring its production under that offending name, but he refused further relief. The defendants' conduct may have been careless. The novice brewers should have been aware of probable objection from Anheuser-Busch. But the infringement was brief and geographically limited, and defendants' conduct was not so egregious as to require them to pay Goliath's attorneys' fees.
It remains only to be said that a panel of the U.S. Circuit Court for the 1st Circuit last August affirmed the District Court. Its unsigned affirmation, now on appeal, was so abominably written that none of the three judges would take public blame for its composition. That, I can understand.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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