1. 800. 973.1177
COURT REPORTER
THIS BUDD’S FOR THE LAWYERS [by James Kilpatrick] Back in 1995, two enterprising women in New England had a great idea. They had been reading Herman Melville’s posthumous story of “Billy Budd, Sailor.” The hero struck them as a particularly manly fellow. Surely, they mused, some manly product should bear so bold a name — a product, for example, such as a really good beer.
Thus was born a trademark case now pend-
Yes! Lawyers did what lawyers do. In the
with the producer, and 5 percent believed
ing in the U.S. Supreme Court on a petition
summer of 2003 Goliath sued David. It was a
that whoever put out the beer had permis-
for review. My guess is that the high court
suit for summary judgment. At a bench trial
sion from Budweiser to do so. The court’s
will sip not even a taste of Billy Budd Classic
before U.S. District Judge Joseph A. DiCleri-
addition suggests that federal judges may
American Ale, but Lisamarie Sapuppo-Ber-
co. the incriminating facts soon emerged. The
be even worse at arithmetic than newspaper
trand and Bernice Keeney, the entrepreneurs,
two ladies, operating as Caught-on-Bleu Inc.,
reporters.
will have had a good run for their money.
had innocently contracted for the produc-
The case will be of interest not only to friends
tion of an ale that would bear the name of
So endeth, for now, the short saga of Billy
of the malty brew but also to friends of trade-
Melville’s hero.
Budd, the brief-lived brew of New Hampshire. Judge DiClerico entered an injunction barring
mark law. This is a highly specialized field, marked by conflicting arguments over law
The eponymous product was to be a classic
its production under that offending name,
and fact and the weight to be given to public
American ale, “a bountiful blend of malts
but he refused further relief. The defendants’
surveys. Here the facts were abundantly
with a full-bodied English First Gold hop for
conduct may have been careless. The novice
clear.
a spriteful, yet shameless, flavor, not likely
brewers should have been aware of prob-
to be forgotten.” The judge explained: “It was
able objection from Anheuser-Busch. But the
By any objective measurement, the king of
a dark beer.” A defense witness testified that
infringement was brief and geographically
American beers is Budweiser, a mild malt
no one who would drink Budweiser “would
limited, and defendants’ conduct was not so
produced since 1876 by Anheuser-Busch
dare think of drinking a micro beer, and the
egregious as to require them to pay Goliath’s
at breweries around the world. Between
people who drink micro beers wouldn’t dare
attorneys’ fees.
1996 and 2002, during the pendency of this
think of drinking a Budweiser.” That testi-
lawsuit, the makers of Bud, Bud Light, Bud
mony had the bell-like ring of truth.
Dry and Bud Ice racked up more than $40
It remains only to be said that a panel of the U.S. Circuit Court for the 1st Circuit last Au-
billion in sales. The company spends $250
The hopeful brewers of Billy Budd produced
gust affirmed the District Court. Its unsigned
million a year in letting the world know that
only 25 kegs. They sold five of these to bars in
affirmation, now on appeal, was so abomi-
“This Bud’s for You.” A Bud blimp floats over
Franconia, Bretton Woods and Manchester.
nably written that none of the three judges
the Super Bowl. A Bud team races for the
Gross sales: $385. Net profit: zero. None of
would take public blame for its composition.
Winston Cup.
these dispiriting facts seemed to mollify the
That, I can understand.
giant. Big Bud had met a test for infringeThe “Bud” trademark has become a hugely
ment laid down in 1961: That is, the trade-
(Letters to Mr. Kilpatrick should be sent by
valuable property, and its guardian lawyers
marks for Bud and Billy Budd were similar;
e-mail to kilpatjj@aol.com.)
mean to keep it that way. They did not seri-
the brews were vended to the same potential
ously object when a Cleveland florist appro-
customers in the same marketplace, and
COPYRIGHT 2005 UNIVERSAL PRESS SYN-
priated “This Bud’s for You” in its advertising.
a survey comissioned by Anheuser-Busch
DICATE
They turned their eyes from “Budd Van Lines”
obediently produced evidence of consumer
This feature may not be reproduced or dis-
and “Bud Brothers Smoke Supplies.”
confusion.
tributed electronically, in print or otherwise without the written permission of uclick and
But at some point Bud’s lawyers learned that
Taken at several New Hampshire malls, the
three bars in New Hampshire were selling
survey found that 27 percent of the respon-
— egad, sir! Aargh! They were selling “Billy
dents exhibited some confusion: 11 percent
Budd ale”!
believed Budweiser produced the beer, 13 percent believed Budweiser was affiliated
PAGE 1
Universal Press Syndicate.