Wednesday, April 14, 2010

Reviving Walter's Beer - A Trademark Discussion

Oh. Dear.

This article is painful. Painful in so many ways. Parts of it actually hurt to read. This one, in particular, causes me to lose sleep and makes my brain want to explode.
Northwoods was able to use the original name because the copyright had expired.
The author and editor of this article should be fired tomorrow for this one error alone. Trademark. Not copyright. Trademark. And. Trademark does not expire. So, for missing the very basics, of their own industry the newspaper editor and author should be fired.

Newspaper article = copyright.
Fox Cities Post Crescent = Trademark.
Northwoods Brewpub and Grill = Trademark.
Walter's Brewing Company = Trademark.

Sorry. That's just a really big pet peeve of mine. Copyrights, trademarks, and patents are not the same thing.

So, with that rant out of the way. Copyright expires. Trademarks do not. You can stop using a trademark, which could, but not necessarily, make it available for use. This is called "abandonment", there is a specific set of requirements that a later user must prove to show that a mark has been abandoned. But the trademark itself has not expired. If you use a word to designate the source of origin of a product, that word will always and forever designate a source of origin. The public may no longer make the connection, the company may no longer be actively marketing the connection, but the trademark hasn't expired. The Federal registration may have expired, but the trademark itself hasn't expired.

For those of you who didn't read the article, let's recap. Walter's Brewing Company brewed beer sometime around the turn-of-the-century in Eau Claire, Appleton, Menasha, and West Bend in Wisconsin, and also in Colorado. Probably because of Prohibition and consolidation, the beer was no longer manufactured by the 1980s. It remains very well-loved and everyone in the area knows what "Walter's Beer" was. In 2009, Northwoods Brewing Company, they of Floppin' Crappie fame, without permission from any of the surviving Walters, releases "Walter's Beer".

Let's look at some of the details of this release:
- it does not use the original recipe
- the beer was re-crafted through experimentation
- taste-testers were used to validate the flavor

So, let me get this right, Mr. Tim Kelly and Mr. Jerry Bechard of Northwoods Brewing Company. You have "experimented" in your brewhouse to mimic a beer that no one has had since, at least, the 1980s; you had no recipe to go off of; you used tasters, presumably from your brewpub that "remembered" what "Walter's" tasted like, to "validate" the flavor of this concoction. You did not consult anyone from the Walter's Brewery; you did not consult any of the living Walters. And, yet, you call your beer "Walter's"?

Ok, let's be fair. Mr. Bechard did, in fact, contact someone who is working with the Walter family to license the original recipe; a Mr. Sanchez of Pueblo, Colorado. Mr. Sanchez has been given the original recipe and is working with the family to recreate Walter's Beer. And, Mr. Bechard, contacted him about working together on the beer. But the negotiations broke down, so Mr. Bechard just did it himself anyway.

This is called "bad faith infringement." And it is a very good way to destroy your entire company in a trademark lawsuit if you lose. Penalties include such wonderful, company destroying activity like: destruction of infringing goods; restitution of profits, damages, and costs; heightened penalties (up to a 3x multiplier); and recovery of attorneys fees. Just to name a few off the top of my head.
Bechard has the legal rights to the Walter's Beer label and trademark, he said.
Well, that's easy enough to check. ... Turns out Serial Number for application (not registration) 77766783 for "WALTER'S BEER" is, in fact, owned by Mr. Bechard. But, it was filed in June of 2009 (not acquired/assigned from the Walter family as the article might imply). Unfortunately, the opposition period has ended (ended April 2nd, 2010, which makes this article rather timely, eh?) making an opposition difficult, but not a cancellation.
Now it's [Walter's] contending with "Floppin' Crappie Ale" as the Northwoods microbrewery's top seller. ... "We just wanted to have a beer in town that people remember as being great."
As opposed to Floppin' Crappie, presumably.

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To be fair to Mr. Bechard and Mr. Kelly. Admittedly, the mark hasn't been used since the 1980s. They probably thought they were doing the right thing and they might have an argument for abandonment. But, Wisconsin is small world. And, when it comes to reviving dead brands, you are, in all honesty, better off letting sleeping dogs lie. At best you create a beer that probably wasn't very good to begin with. At worst, it's trademark infringement and pandering of the worst kind. In other words, nothing good comes from using the "Walter's" name.

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Almost forgot. This is not legal advice. If you have any questions regarding trademark law, please see an attorney.

15 comments:

  1. "It remains very well-loved and everyone in the area knows what "Walter's Beer" was."

    "You have "experimented" in your brewhouse to mimic a beer that no one has had since, at least, the 1980s; you had no recipe to go off of; you used tasters, presumably from your brewpub that "remembered" what "Walter's" tasted like, to "validate" the flavor of this concoction."

    If it was so well-loved and remembered, I don't think it's too big a stretch that they might be able to "experiment" to come up with a recipe that matches those memories. Mocking their process does this article no favors. Thousands of home brewers do the same. There are hundreds of clone recipes published each year that go on nothing other than the flavor profile of the original brew.

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  2. But do said homebrewers then turn around and pass off their Chimay clone as "Chimay" to their friends? No.

    I'm not mocking the process, but rather the result of said process.

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  3. Oh. I should also note that the US is not a "first to file" system like Europe (or, indeed, most of the rest of the world), but rather a "first to use" system. Therefore someone just needs to show that they were USING the mark before the first use claimed in the registration to defeat the registered mark.

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  4. But Homebrewers aren't selling their product. Once they said This is Walter's it opens a big can of worms if they haven't jumped through the legal hoops. Additionally, to clone a homebrew is relatively easy when you have the target to compare against. This beer hasn't been around for almost 30yrs. what are they comparing against? flavor memories...you may be able to match the memories, but that doesn't make it Walter's Beer. Now, I do think the folks actively working with a brand could do a pretty good job of finding faults and inconsistencies (i.e. tasters working with current products like Budweiser) and work to create a match but I don't think anyone in Eau Claire is likely to have the training to do what they asked. Call this mocking if you want, but the process they used was not going to work so trying to use it to rationalize their decision to take the Brand is a realy big stretch.

    I also think the fact that the folks who HAVE the brand are trying to get it restarted/brewed implies that it's NOT abandoned.

    And yes, the Floppy Crappie is not good.

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  5. Hey, they do have the slogan, " Walter's: The Beer that is Beer" to live up to. No small feat to recreate.

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  6. Ah yes da memories of knocking down a picnic size quart bottle of Walters. I never did it, but I have seen the old posters promoting that. Retro is in and maybe the Walters brand can make a comeback. When I was up there, the beer is available in both can and bottle. There was a $2 difference in price, and guess what sold better, the 5.99 cans. In today's economy that worth something. Been real nice talkin with you - Bob

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  7. I think that there is a very good argument for abandonment. They hurt themselves, however, purposefully tying themselves to that old beer and saying everyone remembers it. Don't forget trademark rights are based on use so planning to use might not be enough.

    In general, I don't like the newspaper article because it shows a lack of understanding of the law. Dude, just call a trademark attorney, we'll talk you through it. And don't call it copyright. ARGH!

    Mr. MBR and I had a "discussion" about this where I was willing to take Northwood's case, but he was less enthused. It isn't a hopeless case with ~30 yrs of non-use. I just can't call Walter's famous enough to withstand the presumption of abandonment without further proof.

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  8. I loved the original post, very informative and does a nice job pulling in correct knowledge. One of the best posts I think I have seen on the website.

    In support of the inability to "recreate" a flavor from 30 years ago consider these notes...beer drinkers are not able to consistently label Miller Lite or Bud Light in taste test. Thus, to remember a receipe from 30 years ago is not likely that possible. It appears the beer was, and is now being brewed as, an american lager...Bud or what have you. Not hard to come up with a recipe to make a generic tasting light lager beer. Then our minds allow us to believe what we want to believe. Let's take it as it is, a poor marketing attempt by Northwoods brewing with potential legal issues. Fun stuff!

    Ben

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  9. I give Kudos to Northwoods for their attempt to bring back a historic local beer that is tied so closely to the Eau Claire region, but couldn't they have checked into the legal issues a little better? On the other hand, its my personal recollection (Tornado Watch weekend anyone?) that by the 1970's, Walters Beer was synonomous with cheap and bad tasting. Some things are better left in the Museum (i.e. the Potosi National Brewery Museum)

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  10. In regard to: "Ok, let's be fair. Mr. Bechard did, in fact, contact someone who is working with the Walter family to license the original recipe;..."

    Just an FYI--Mr.Bechard did not contact the group in Pueblo--they contacted him and set up the meeting. The Pueblo group is indeed tied to the Walter family and had there permission long before Northwoods attempted the revival--the family was in the stages of bringing back their original beer in Pueblo and in Eau Claire. To the author's credit above, the article that came out in the Leader Telegram made it sound as though Mr. Bechard had contacted this group in Pueblo--but again that is not how it happened.

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  11. Interesting descriptions of Walter's flavor profile on this page, from some national reviews.

    http://www.falstaffbrewing.com/walter%27s.htm

    Little-to-no hop flavor, delicate, sweet malt suggesting honey.

    As some have suggested, few people are likely to recall exactly what Walter's Beer tasted like. If you brew something that evokes the memory of that beer, with nothing to compare to, who says that isn't close enough?

    The point isn't really to exactly duplicate that original recipe. They're trading on the nostalgia factor of Walter's Beer more than the taste. As the article I linked to suggests, the local populace at the time didn't think highly enough of the beer to keep the brewery in business.

    "Dan Walter, a former employee (but no relation to the family) was blunter: "You can badmouth the Walter family, you can badmouth Michael Healy, and you can bad mouth Ed & Cindy, but there's no longer a brewery here because people didn't support it" Had people in Eau Claire supported their local brewery, it might still be here today. I guess that it was more important to hold a Bud Light in their hands than to ensure that friends and neighbors in Eau Claire had meaningful employment. "

    There's some other interesting bits in that history that, if I'm reading it correctly, suggest the Walter family doesn't have control of the Trademark either. The brewery and it's marks changed hands several times over the years, though I'm not sure who it all ended up with.

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  12. I had Walters Beer in the 80's when I lived in Chicago. I remember buying it in Itasca Illinois when I was passing through there. At that time the liquor store was selling out of it and it was priced ad $4.00 (four dollars) a case so I bought some for the heck of it.

    When I got home and tasted it I found it to be the best beer I ever had. You could even drink it warm (and I hate warm beer). It had a sweet almost "root beer" flavor.

    I wish I would have bought a truck load not just a few cases.

    I would definitely be willing to pay a lot more for it and have it shipped to Tennessee where I live now.

    what a shame they went out of business...

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  13. There has been an injunction filed contesting Mr. Bechard's application to the Walter's Trademark by Mr. Sanchez. The process of bringing Walter's Beer back between the Walter family and Mr. Sanchez began in 2003, 6 years prior to Mr. Bechard's attempts to hijack the Walter name.

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  14. Mr. bechard should have done some more searching before he "attempted" to recreate Walter's beer.It's funny how Mr. Sanchez was able to connect with the Walter family in Eau Claire, when he lives in Pueblo,COLORADO! BUT Mr. Bechard lives in the same town as SEVERAL members of the Walter family and seemingly couldn't contact anyone!What a crock!!! Mr. Sanchez has been trying to go about the ressurection of Walter's beer in a correct and respectful manner, and this yahoo just jumps in on him and takes over...SHAME ON YOU JERRY BECHARD!!!

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  15. I've tried the new Walter's. It is just another undistinctive american beer. Ok, but not something I'd buy again.

    In the 70's and early 80's I lived in Madison and came to Chippewa Falls chasing my future wife (she is still around). I didn't like Leinies (tastes like wet cardboard to me), but loved the unpasteurized Wally's in quarts. I used to take cases on Wally's quarts back to MadCity for all my buddies. Great stuff. Too bad they can't get the original recipe.

    Swamper

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