Single malt Scotch drinkers are smarter than beer drinkers. There are wine connoisseurs, but no such appreciation for beer. The average American, picking up a six-pack at the corner store, can’t decode labels well enough to know what brand she’s buying. To fans of Missoula microbrews, these are fighting words, but to the U.S. Trademark Trial and Appeal Board (TTAB), the logic is sound. And if Brad Robinson, one of the founders of Big Sky Brewing Company, can’t prove otherwise, there’s a good chance Missoula beer fans may soon have cause to cry in their mugs over the demise of their beloved Moose Drool Brown Ale.
This summer, Moosehead Brewers of New Brunswick, Canada, successfully overturned a U.S. trademark issued in 1992 to Victor, Idaho’s Grand Teton Brewing Co. for its Moose Juice Stout. Now the Canadians have set their sights on Big Sky’s 1995 application for a trademark for Moose Drool.
The reversal of Grand Teton’s trademark effectively ended that brewery’s ability to produce its award-winning stout. Grand Teton founder Charlie Otto says the company faced a choice—stop brewing the brand or stare down an angry Moosehead.
“We could keep brewing the beer, but then Moosehead could say that we’re infringing on their trademark and sue us for damages,” says Otto. “So we just decided to cut our losses and go forward with some new brands.”
But Big Sky and its lawyers have paid close attention to the Moose Juice/Moosehead case and think they can defend their name. Robinson keeps a dog-eared copy of the TTAB’s finding and believes that, even if the board finds against him, a jury would not.
“In the case of Moose Drool and Moose Juice, we clearly have a registered name for the word ‘moose’ as it relates to beer,” says Moosehead Vice President of public affairs Joel Levesque. “If someone came along and wanted to make moose chocolates or moose cars, that doesn’t apply, but when it comes to beer we clearly have proven that it applies to us numerous times.”
Robinson’s collection of moose-related beer memorabilia says differently. Upstairs, outside his office, Robinson and co-workers have gathered an entire wall of moose bottles, cans, labels, signs and plastic trophy heads distributed by multiple beer companies. He says the collection—from a turn-of-the-last-century bottle of “Moose Beer” to a collectible 2001 Anheuser-Busch beer stein decorated with a moose head—proves Moosehead has never had, and doesn’t currently own, the sole right to ‘moose’ as it relates to beer.
On the other hand are the findings of the TTAB in the Moose Juice/Moosehead case, which Robinson finds specious. The board found that “when products are low priced and subject to impulse buying, the…likelihood of confusion increases because purchasers are held to a lesser standard of purchasing care.” To Robinson this implies that consumers don’t distinguish between beers like they do between fine wines or upscale Scotches, and Robinson doesn’t buy that argument at all.
“I just feel very strongly that our consumers are sufficiently sophisticated enough to be able to just look at the label and say, ‘This is Moose Drool, I’ve had that. This is Moose Juice, I’ve never had that. This is Moosehead, I’ve never had that. This is Dixie White Moose, I’ve never even heard of this, I think I’ll try six of those,’” says Robinson.
But Grand Teton’s Otto has learned from experience that the legal “likelihood of confusion” goes beyond labels.
“It could be a waitress telling a customer a list of beers and they say ‘moose’ and the customer instantly says, ‘oh, I’ll have one,’” says Otto. “We listed every possible reason why they couldn’t be confused, but in the end the trademark office said there’s a likelihood of confusion.”
Robinson isn’t dissuaded. He says the TTAB also found that, while it’s a big brewery, Moosehead isn’t as recognizable a brand name as Coke or Nike, and he believes that fact gives Big Sky even more wiggle room.
“Moosehead makes the claim that they’re a famous mark saying, ‘Oh my God, Moosehead beer, that’s a famous mark,’” says Robinson. “Well famous actually means something in legal terms, and the TTAB actually says, ‘No you’re not a famous mark, you’re well known within the beer industry, but you’re not a famous mark.’”
Moosehead’s logic is that the company will never have the chance to grow big like Nike with its image being diluted by other moose beers. They say they like the competition from smaller breweries and they like the fact that craft beers have raised beer’s profile, but they need their name and logo protected for continued success.
“It sometimes looks like we’re trying to be the big bad guys and squash our competition but that’s not the case at all,” says Moosehead’s Levesque. “Sometimes we get e-mails from consumers of Moose Drool or Moose Juice that say this is David versus Goliath. The fact of the matter is that we don’t have any ill will toward the makers of those brands, it’s just if we don’t take these steps, we could lose our trademark protection.”
Moosehead likes to think of itself as a big Big Sky or Grand Teton, not a small Budweiser or Coors. And Big Sky’s Robinson agrees that the Canadian brewer is small in the scheme of things, but still an order of magnitude bigger than Big Sky.
So why not just change Moose Drool’s name and stop Moosehead’s charge in its tracks? Neil Leathers, another founder of Big Sky, says that economics and pride both come into play.
“It’s our big beer,” he says. “It’s what we built the business around. So we’d have to be really convinced that we’re wrong to stop brewing it, and we’re not even remotely convinced we’re wrong.”