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