Anheuser-Busch’s Budweiser brands itself as the king of beer and the company’s recent trademark defense shows it’s not willing to share the throne. A California craft beer company named She Beverage Company recently filed a trademark application with the U.S. Patent and Trademark Office (PTO) for THE QUEEN OF BEER for “beer,” and Anheuser-Busch quickly moved to oppose it.
Anheuser-Busch argued in its opposition that She Beverage Co.’s trademark would cause consumer confusion with several of its KING OF BEERS word and design marks, the oldest of which was registered in 1968 for “beer.”
Anheuser-Busch also argued that THE QUEEN OF BEER would dilute the distinctive nature of Budweiser’s famous trademarks. Famous marks are afforded heightened protection from similar marks because of the strong connection in the mind of the public between the source of the product and the mark. And there is little doubt that Anheuser-Busch’s marks, including Budweiser, qualify as famous considering the hundreds of millions of dollars that it spends annually on advertising, and its place as one of the world’s most valuable brands.
This would also not be the first time that the fame of the Budweiser brand has worked in its favor to oppose plays on its well-known slogan. There are trademark applications for THE QUEEN OF BEERS, QUEEN OF BEERS, and QUEEN OF BEER in the PTO database, all of which have since been abandoned after Office Actions or oppositions from Anheuser-Busch.
In its current opposition, Anheuser-Busch pointed to its previous opposition against THE QUEEN OF BEERS, where the Trademark Trial and Appeal Board (TTAB) ruled in its favor. In that case, the TTAB ruled that consumers would mistakenly believe that THE QUEEN OF BEERS was a product extension of the Budweiser brand that was targeted towards women. That fact, combined with the fame of the Budweiser marks, warranted summary judgment in favor of Anheuser-Busch.
The owners of She Beverage Co. readily admit that their beer is targeted towards women, saying “[O]ur message is for women. We feel all women are queens. That’s really where it originated from, and so we named it the queen of beer.” But even if She Beverage Co.’s beers are targeted towards women, that argument is not likely to help its defense. Anheuser-Busch does not limit its beer to a particular target market, so its goods are presumed to travel in all “normal channels of trade, and that they are available to all classes of purchasers.” Presumably Anheuser-Busch’s class of purchasers includes all potential beer drinkers, including women. So it appears that Anheuser-Busch and She Beverage Co. essentially target the same consumers with identical goods. In these cases, famous marks are given more legal protection than an unknown mark.
Finally, in its opposition Anheuser-Busch also took aim at the underlying registrability of THE QUEEN OF BEER mark, arguing that the mark was not in use “in commerce” as required by federal trademark law, because the sales and use of the mark have so far been limited to California. Indeed, the Lanham Act requires that a mark be “use[d] in commerce” in order to be registrable, which it defines as “all commerce which may lawfully be regulated by Congress.” The PTO, following Supreme Court precedent, has interpreted “commerce” as “interstate commerce” (i.e. commerce among the states.) Anheuser-Busch’s argument thus might present another way to invalidate THE QUEEN OF BEER mark, even if the TTAB finds that consumers can distinguish the new “queen” beer from the Budweiser brand. However, the success of this argument would likely depend on evidence that sales or advertising of THE QUEEN OF BEER are solely limited to California. This may prove a difficult evidentiary burden because of She Beverage Co.’s internet advertising. Perhaps that is why Anheuser-Busch only gave this argument a passing treatment in its opposition brief.
She Beverage Co. plans to fight the trademark opposition, and has filed a pro se answer to Anheuser-Busch’s complaint. But based on the famous nature of the Budweiser mark, the identical goods, and similar consumers, success may be a tall order.
