(Krebs, OK) – Another trademark infringement lawsuit emerged last month between two beverage manufacturers; this time, a soft drink company is the plaintiff and a craft brewery is the defendant. The New Ulm Brewing & Beverage Company apparently filed the suit after exchanging letters earlier this year with the Krebs Brewing Co., maker of the Choc Beer brand family. Krebs refuted New Ulm’s allegations of infringement and continued to use the mark.
New Ulm contracts with August Schell Brewing Co. to make 1919 Draft Root Beer, as it has for more than 25 years. The company holds a registered trademark with the USPTO for use of the mark “1919” in relation to carbonated soft drinks, which it first acquired in 2001.
New Ulm contends that it first began using the mark in commerce in March of 1987 along with “a red, black and white color scheme on its packaging and promotional materials.” The company indicates the 1919 name “signifies the year when hundreds of breweries were faced with the prospect of closing because of Prohibition.” 1919 Root Beer is offered in restaurants and bars on draft with pull taps to allow its soft drinks to be dispensed alongside beer taps and “handled like craft beer.”
Krebs Brewing (aka Choc Beer Co.) makes an American Pale Wheat Ale called 1919.
According to Krebs’ website, the beer is based on a recipe from 1919. Interestingly, Krebs unsuccessfully filed its own trademark application for the “1919” mark back in 2010. In response to the application, the USPTO issued an Office Action, indicating that Krebs’ mark might be confusingly similar to yet another trademark registration for the mark, “ONE.9 1.9.” Fetzer Vineyards uses that one in connection with one of its wines.
Also, at that time, New Ulm filed a Letter of Protest with the USPTO, arguing that Krebs’ and New Ulm’s marks are identical, that a mark used on beer “is confusingly similar to an identical mark used on carbonated soft drinks,” and that Krebs’ beer and New Ulm’s soda are sold in the same retail outlets. Krebs expressly abandoned its trademark application on April 20, 2011.
The main question in this case, as with many others, will be whether Krebs’ use of the term, “1919,” in connection with beer would be confusingly similar to New Ulm’s use of 1919 in connection with Root Beer.
A representative with Krebs told BeerPulse last week that the company is aware of the allegations made and has been working with its lawyers to resolve the matter.
Daniel Christopherson of DCBrewLaw.com is a registered patent attorney with the Christopherson Intellectual Property Law Firm. He is an avid craft beer enthusiast who helps new and established breweries develop their business models and protect their intellectual property.