Bungle in the Beer Tapper Jungle?

by Winthrop & Weinstine, P.A.
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The Sports Bar in the Mirage Resort & Casino, located in Las Vegas, Nevada, is currently sporting a pretty interesting collection of tap beers, from left to right: Bud Light, Goose Island Honker’s Ale, Stella Artois, Heineken, Dos Equis, Pacifico, Shock Top, Newcastle, Samuel Adams, Budweiser, Goose Island Indian Pale Ale, and Michelob Ultra.

What really caught my attention is the three-dimensional trade dress and branding collage of competitive beer tap handles a/k/a beer tappers – on a rainforest background, hence the jungle.

These branded beer tap handles no doubt qualify as point of sale devices, linking the appearance of the handles to the beer that flows from the attached taps. But, could you identify the beer brands without the names on the handles? Is there an opportunity for non-verbal branding here? Goose Island seems to think so.

By the way, did you know that there are design firms that specialize in creating exceedingly unique tap handles? It actually makes sense. Apparently it is common knowledge in the industry that “great tap handles pour more beer,” as noted by Tap Handles, located in Seattle. So, there is a business case for these grandiose designs.

This business case opens the door to non-traditional trademark protection. And, most impressive from a non-traditional trademark perspective is the pair of Goose Island beer tap handles. Impressive because all of the other beer brands rely on verbal branding elements to identify, distinguish and indicate source, but Goose Island’s white goose with a yellow beak stands on its own without any easily visible verbal branding reinforcement.

The confidence in this non-verbal branding decision reminds me of Nike’s Swoosh, Starbuck’s Siren, McDonald’s Golden Arches, and Shell Oil’s Shell Logo — examples where no words are necessary to function as a trademark to signify the underlying brand.

So, where is the potential bungle in this jungle of beer tappers? Maybe it isn’t an outright mistake as much as a missed opportunity. And, maybe a change in trademark law has opened a new likelihood of pitfalls and mistakes for the uninformed.

As to the missed opportunity, for some reason, the three-dimensional non-verbal design is actually not registered for beer. This is curious, as Goose Island is a Fulton Street Brewery brand, owned by Anheuser-Busch, a company quite familiar with protecting brands in connection with the consumable product known as beer.

The Goose Island beer tap handle instead is federally-registered as a product configuration trademark for “hand tools, namely beer taps.” The registration utilizes this description of the claimed mark: “A configuration of a beer tap handle in the form of a goose head and neck with an oval design at neck level. The mark is lined for the colors yellow and green.” And, another nearly identical registration exists too, with a filing date one day later and a registration date about three months later — this one appears to be silent as to any written description of the claimed mark.

Instead of duplicating protection for the products known as beer tappers themselves, a non-traditional trademark registration protecting beer would appear to be warranted. While I recognize that there is value in protecting the shape and appearance of the beer tapper itself, because there appears to quite a market for beer tap handles, and they readily can be imitated, copied, counterfeited, bought and sold online, let’s face it, revenue and profits from the product known as beer has to exceed the same from the beer tap handles, right?

Now, as to the law change, for studious readers who noticed that the pair of non-traditional goose head product configuration trademarks that are federally-registered for beer tap handles (not beer) were not registered under Section 2(f) of the Lanham Act (meaning that no proof of acquired distinctiveness was required by the USPTO to achieve registration), the explanation must lie in the fact that both registrations issued months before the U.S. Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Samara Brothers, Inc.

Recall that back in March 2000 in Wal-Mart Stores, the Supreme Court drew a black and white line between non-traditional trademark protection for product configurations (which now must have proof of acquired distinctiveness or secondary meaning to enjoy protection or registration) and non-traditional trademark protection for product packaging or trade dress (which may forego proof of acquired distinctiveness so long as the claimed non-traditional trademark is sufficiently unique to qualify as being inherently distinctive).

What does all this mean? Well, it ought to be — and it does appear to be — easier to obtain protection and registration of beer tap handle designs as point of sale devices for beer. When the product in question is beer flowing from a tap, the handle design does not constitute a product configuration of the goods, so the limiting rule in Wal-Mart Stores does not apply. On the other hand, when the product in question is the beer tap handle itself, now the limiting rule in Wal-Mart Stores does apply because the design represents the actual configuration of the product, making evidence of acquired distinctiveness required.

So, it seems to me, the best way to protect exclusivity in the appearance of the tap handle design before trademark distinctiveness can be acquired for the handles is to obtain a non-traditional trademark registration for the tap handle design covering beer, and then also consider a copyright registration and/or design patent for protection of the handles themselves, agree?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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