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Schlafly v. Saint Louis Brewery, LLC

United States Court of Appeals, Federal Circuit

November 26, 2018

BRUCE S. SCHLAFLY, PHYLLIS SCHLAFLY REVOCABLE TRUST, SUCCESSOR-IN-INTEREST TO PHYLLIS SCHLAFLY, Appellants
v.
SAINT LOUIS BREWERY, LLC, Appellee

          Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in No. 91207224, 91207225.

          Andrew Schlafly, Far Hills, NJ, argued for appellants.

          Mark R. Sowers, The Sowers Law Firm, LLC, St. Louis, MO, argued for appellee.

          Before Newman, Mayer, and Stoll, Circuit Judges.

          Newman, Circuit Judge.

         The 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 opposition.

         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 protections.

         We conclude that the mark "SCHLAFLY" for beer meets the requirements for registration, and affirm the decision of the TTAB.

         Background

         A

         The St. Louis Brewery

         SLB 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.

         SLB 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.

         SLB 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 ...


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