Upon publishing the original story I was contacted by an attorney who provided some important insight into this matter. I’ve updated the original post to include some of his comments. Most recently updated September 7th. See the bottom of the post for the most recent addition.
I do not claim to be a lawyer or to understand these things beyond the most rudimentary level. I share this information here so those individuals and businesses who might actually have a real stake in the matter are aware.
Someone has officially applied to trademark beer. It was published for opposition on August 25, which means the 30-day opposition period began on that date. If you are familiar with the process, you know what that means. Apparently, the applicant is a clothing producer so this could, in theory, interfere with anyone else’s right to use the word beer on T-shirts, hats, and so on.
Like I said, I’m not a lawyer, so what would a lawyer say about all this?
“It’d take a lot of brass for the “Beer” clothing co. to start sending out demand letters trying to make beer companies stop using the word beer on their promotional shirts, jackets, and caps,” said Bob Cumbow, a trademark attorney with Miller Nash Graham & Dunn. “One of the key points that brewers who also sell clothing and other promotional merchandise have going for them is this: The wording on the front or back of a t-shirt is not a trademark and is not perceived by consumers as a trademark. Rather, it’s what the Trademark Office calls “informational matter.” The trademark on a t-shirt is not found on the front or back of the shirt, it’s on the tag on the inside-back of the shirt. That’s where you look to find out who made the shirt—and that’s what a trademark does: tells you the source of the product.”
I asked Bob Cumbow about a specific example. For instance, what if Georgetown Brewing Company offered a shirt with the words darn tasty beer on it?
“Consumers would be unlikely to see the phrase “Darn Tasty Beer” on a shirt as a trademark associated with the maker of the shirt,” he said. “In fact, they’d be unlikely to interpret it as a trademark for anything; rather, it’s a bit of informational messaging, and not about the shirt but about the beer, or beer in general.”
“Now, maybe somewhere else on the shirt it also says Georgetown Brewing or Bodhizafa, and yes, consumers would recognize those as trademarks—but for the beer the shirt is promoting, not for the shirt itself. Beer clothing company would be hard-pressed to make a cogent argument that the word “beer” appearing on an article of clothing promoting some brewery’s beer is likely to confuse consumers into believing that the brewery and the clothing company are the same or affiliated. And without that confusion, there can be no trademark infringement and no cease-and-desist order.”
This is, of course, the opinion of just one well-informed attorney. If you have a horse in the race and are legitimately concerned, you should seek your own legal advice from Bob Cumbow or someone like him.
The trademark opposition period lasts for 30 days. During that time, anyone with a real interest in the matter can oppose the trademark application and attempt to stop the registration of the trademark. To file an opposition, you must file an official notice of opposition with the USPTO.
Legitimate opposition does not include random people who think the registration of the trademark would be generally unfair. Rather, the opposition must come from individuals and entities that have a personal, real stake in the outcome.
According to information obtained from the listing on the Official Trademark Gazette, “The mark consists of standard characters without claim to any particular font style, size, or color.”
The trademark application is for “bottoms as clothing; Footwear; Headwear; Jackets; Short-sleeved or long-sleeved t-shirts; Shorts; Socks; Sweaters; Sweatpants; Tops as clothing.”
The applicant is Never Working LLC of Vernon, California.
Here is a link to the listing on the Official Trademark Gazette.
On Twitter, someone said the following:
The way I read the original plan to use the word “BEER” on clothing is as an actual logo on the clothing. I understand that there’s no style applied at this time, but they could apply for style after it’s accepted without the comment period, couldn’t they? There’s nothing in the filing stating that they are representing a company called “Beer Clothing Co.” just that they want to trademark the word BEER being used on clothing.
In response, Bob Cumbow says, “No, they couldn’t “apply for style after the comment period”. Once you’ve applied to register your trademark, you can’t make changes to the mark itself. Nor can you add to the description of goods. Nor can the owner of the trademark BEER for clothing stop a brewer from using the word “beer” in promoting a product that is actually beer—even if that promotion includes putting the word beer on clothing.”