BRUCE S. SCHLAFLY, PHYLLIS SCHLAFLY REVOCABLE TRUST, SUCCESSOR-IN-INTEREST TO PHYLLIS SCHLAFLY, Appellants
SAINT LOUIS BREWERY, LLC, Appellee
from the United States Patent and Trademark Office, Trademark
Trial and Appeal Board in No. 91207224, 91207225.
Schlafly, Far Hills, NJ, argued for appellants.
R. Sowers, The Sowers Law Firm, LLC, St. Louis, MO, argued
Newman, Mayer, and Stoll, Circuit Judges.
Newman, Circuit Judge.
Saint Louis Brewery ("SLB") is a craft brewery that
was founded in 1989 by Thomas Schlafly and Daniel Kopman in
St. Louis, Missouri. The brewery began selling beer with the
SCHLAFLY logo in 1991, and asserts that it "has
continuously sold beer under its SCHLAFLY trademark"
ever since. Appellee's Br. 2. In 2011 SLB applied for
trademark registration for the word mark "SCHLAFLY"
for use with various types of beer. The application drew
opposition from two relatives of Thomas Schlafly ("the
Opposers"): Phyllis Schlafly, Thomas's aunt, and
Bruce Schlafly. The Trademark Trial and Appeal Board
("TTAB" or "the Board") denied the
Opposers appeal, arguing that the TTAB did not recognize that
the mark was "primarily merely a surname," and that
the TTAB improperly accepted that the mark has acquired
secondary meaning although the applicant did not provide
survey evidence. The Opposers also claim violation of their
First Amendment, Fifth Amendment, and Due Process rights and
conclude that the mark "SCHLAFLY" for beer meets
the requirements for registration, and affirm the decision of
St. Louis Brewery
states that it sells sixty types of beer, all with the
SCHLAFLY mark, in fifteen states and the District of
Columbia, through thirty wholesalers, 14, 000 retail
locations, and several national restaurant chains.
Appellee's Br. 4-6. From 2009 to 2014, SLB sold more than
seventy-five million units of SCHLAFLY beer, not including
sales made at its restaurants; this included 56.3 million
bottles and cans and 18.5 million draft servings of SCHLAFLY
beer. Appellee's Br. 6.
states that it has made substantial investments in marketing
the SCHLAFLY brand, and that all labels for SCHLAFLY beer
prominently feature the SCHLAFLY mark. It claims that it has
spent $1.1 million in advertising over the last five years
and has featured the SCHLAFLY mark in radio, print
publications, billboards, social media, and at over 500
events. Appellee's Br. 7. SCHLAFLY beer has been
mentioned in print media, including USA Today, J.A. 347-52,
The Atlantic, J.A. 369-70, The Washington Post, J.A. 375-77,
and The Wall Street Journal, J.A. 372-73.
already has trademark registrations for two other logo marks
that include the SCHLAFLY name. The application here seeks to
register the SCHLAFLY word mark in standard character format
for "[b]eer, ale and lager; [b]eer, ale and porter;
[b]eer, ale, lager, stout and porter; [b]eers; [b]lack beer;
[b]rewed malt-based alcoholic beverage in the nature of a
beer; [and] [c]offee-flavored beer." J.A. 456. To
support its application, SLB submitted a Section 2(f)
declaration, stating that the SCHLAFLY mark had acquired
distinctiveness due to ...