More On That US Trademark Law Facing Vermonster

You know, it’s fun to learn new things. Today, for example, I learned how to use the search tool at the United States Patent and Trademark Office. A great example of open government, you can even see the emails on the Office’s file listed as Notation to File – thrill to the bureaucratic reality, baby. Why’d I do it? Well, because Hansen Beverage Company, the makers of a jittery soda pop called Monster, has issued a press release about their reasons for objecting to the application filed by Rock Art Brewery to trademark their beer called The Vermonster. In part, they state:

In order to protect Hansen’s valuable Monster Energy® trademarks, Hansen is legally obliged to, and routinely sends, “cease and desist” letters to, and where appropriate, pursues litigation against, entities and persons who use or attempt to register similar trademarks for products that are similar or related to Monster Energy® products. A “cease and desist” letter was sent to Rock Art Brewery on September 4, 2009… Hansen has not, and does not, target or single out one company over any other, nor distinguish between big or small companies or individuals when enforcing our trademarks.

To be fair to Hansen, that is true. For example, when one looks at the registration by Coca-cola of a drink called “Monster Refreshment” you can see that Hansen does object to others and is not afraid to take on companies far bigger than they are. Hansen actually seems to be involved with a whopping ninety-nine trial or appeal files of one sort or another at the moment. So, they are not picking on Rock Art – though what I see are other firms using “monster” somehow and not just a word, as with Vermonster, containing “monster” or some a step further. What would the do if faced with a “-onster” word like “Sue-me-nonster” beer? I have no idea.

Sometimes trademark applications just go away as when the Brooklyn Brewery abandoned its trademark application for its Monster Ale barley wine in 2005. No idea why they did that. They seem to have all their other brands in he system including the as yet unmade and somewhat mysterious Local 3. Sometimes they are resolved as when Hansen bought the rights to a beer brand called Flathead Lake Monster in 2006… though it doesn’t say for how much. Actually, Flathead Lake Monster Ale seems to have gone away about the same time. There was a Flathead Lake Brewery in 2008 but that seems to have gone, too.

But one trademark didn’t seem to get protected by Hansen. The one for Monster Malt Liquor. It was deemed abandoned by the Patent and Trademark Office who sent Hansen’s lawyer this Notice of Abandonment on 20 July 2009. See, Hansen failed to file a document called a “Statement of Use” even though they were given three extensions to make that filing. Because, presumable, they did “use” the name by making a beer called “Monster.” Or, I think, make any beer at all for that matter. I guess in that respect beer and jittery soda pop are very different things.

Will Hansen’s abandonment of their one intended beer trademark make a difference? Will it matter to their argument that Vermonster causes confusion when it is pointed out that they could not put even a malt liquor on store shelves? I have no idea – but you sorta think it should, right? Interestingly, another factor that might affect the outcome is that soda and beer are in the same trademark goods and services category called “light beverages” which is separate from both wine (listed under “alcoholic beverages”) and coffee (listed under “staples”). A quirk? Not important? Who knows?

Meanwhile, you know things are getting more jittery than usual at Hansen HQ as Monster Energy may have stopped tweeting. the push back and the boycott grow. Because the consumer doesn’t need to wait for a ruling from the Patent and Trademark Office, right?

If “Vermonster” Is Confusing – Isn’t “Monster” Worse?

Much is being made of a legal claim being brought against Rock Art, a small Vermont brewer, who makes “Vermonster” beer by a premium soda pop maker whose brands include “Monster” energy pop for confusing the brand – especially since the claim is being made in the name of the soda company’s plans to enter into the beer market. But not so much is being made on this point noted by one Green Mountain State publication:

Rock Art isn’t the only Vermonster out there. Ben & Jerry’s has long used the name for a massive tub of ice cream available at its shops. A spokeswoman for the company said she was not aware of any trademark issues with the name. “Vermonster” is also the name of a series of truck rallies in Bradford. Brooklyn Brewing Co. makes a barley wine called “Monster Ale.” A representative to the company declined to discuss whether Hansen had challenged its use of the name.

OK, that is a few points but you see my point, right. Good old Brooklyn Beer has had a beer called “Monster” on the shelf for quite a number of years. I have one in my stash right now. Simmering in its own wickedness, no doubt. There are others, too. Will they all get sued? The Bee-to-the-Ay lists 34 monstrous craft beers on the market already. What if all craft brewers shared in the idea and put out their own Monster and “-onster” branded beers, too?

We are only at the stage of the legal letter sent, we are told, by the specialist intellectual property law firm Knobb, Martens, Olsen & Bear. Which is good. There is still time to think of the big picture. It may well be that the negative reaction to the note may well lead the Hansen Beverage Company to reconsider their strategy. They look like they want to get along and have a happy name in the marketplace. Who doesn’t? Hard to overcome bad press.

Our Collective Family Record Of Slavery

I have the TV on in the mornings. It drones on and if I am lucky and the kids sleep in past 4:45 am, I get to pay half-attention to the CBS Morning Show to learn about all the real news. And this morning there was a short piece about the genealogy of Michelle Obama which told about the five generations from slavery to the White House:

She began working on Michelle Obama’s roots at the behest of the Times before President Barack Obama’s inauguration. Smolenyak said her mother, like Michelle Obama’s mother, Marian Robinson, carried the surname Shields, and an “instant affinity” pushed her interest. The first lady’s ancestors lived across the South and Midwest, and many were part of the Great Migration that saw blacks leave the South for the industrialized North. It was the 6-year-old slave Melvinia Shields, bequeathed in her master’s will and later sold for $475, who tugged at the genealogist’s heartstrings. “It’s still jarring to see dollar signs associated with human beings,” said Smolenyak.

In my work I am bumping into history more and more and find the specifics of personal history and who was related to who the most interesting stuff. A few months ago, I asked myself who was the last slave in my town. I didn’t really answer the question but found some information – especially the story of the man who seemingly incongruously fought at Sackets in red during the War of 1812 even as had also been brought to Ontario at the end of the American Revolution as a slave to Loyalists. Makes me wonder if any were on the ships from New York City in 1783-84. There were plenty of possibilities in those days… possibly. I still need to find the 1812 soldier’s name but it also reminded me of the prof who taught slavery in first year property class to illustrate the principles in a way that stuck in the mind. Nothing like a children listed in a slave sale advertisement to bring a point home. Now I wonder who the last slave sold in my town might have been. And where was the sale held? I had no idea they were curious about the same questions in Largs.

Warning: Your Freebie Beer Blogging Ways Are Over!

A few weeks ago, a wiggling waggy hand rose above the crowd pointing out that there was uncertainty as to who was dabbling in beer blogging in relation to matters in which the blogger had a financial interest. Melissa Cole admitted that there were doubts even about her own writing and that it was all not quite on. It has all devolved into a well deserved bout of slappy heed [Ed.: in the comments] over calling out but not calling out yet the point is still a reasonable one… as is Jeff’s counterpoint… but not Pete’s… Pete’s contribution is not helping things at all.

Well, as the New York Times tells us things are now more serious than whether one or another or all of us are cool with… or is it cool towards… such practices. Bigger than even Pete Brown (as sophomorically illustrated¹) himself, the UK’s – if not the language’s – real top beer writer. See, the law is now involved as the United States Federal Trade Commission has issued a revision to its “Guides Concerning the Use of Endorsements and Testimonials in Advertising” (warning: big honking burly .pdf) which states in a number of ways that blogging has now gone big time and we know so because the line between comment and endorsement, opinion and advertising has gotten blurred. For instance, the FTC states at page 14 and 15:

The Commission recognizes that because the advertiser does not disseminate the endorsements made using these new consumer-generated media, it does not have complete control over the contents of those statements. Nonetheless, if the advertiser initiated the process that led to these endorsements being made – e.g., by providing products to well-known bloggers or to endorsers enrolled in word of mouth marketing programs – it potentially is liable for misleading statements made by those consumers.

… and further at 47 to 48:

The Commission acknowledges that bloggers may be subject to different disclosure requirements than reviewers in traditional media. In general, under usual circumstances, the Commission does not consider reviews published in traditional media (i.e., where a newspaper, magazine, or television or radio station with independent editorial responsibility assigns an employee to review various products or services as part of his or her official duties, and then publishes those reviews) to be sponsored advertising messages. Accordingly, such reviews are not “endorsements” within the meaning of the Guides. Under these circumstances, the Commission believes, knowing whether the media entity that published the review paid for the item in question would not affect the weight consumers give to the reviewer’s statements. Of course, this view could be different if the reviewer were receiving a benefit directly from the manufacturer (or its agent). In contrast, if a blogger’s statement on his personal blog or elsewhere (e.g., the site of an online retailer of electronic products) qualifies as an “endorsement” – i.e., as a sponsored
message – due to the blogger’s relationship with the advertiser or the value of the merchandise he has received and has been asked to review by that advertiser, knowing these facts might affect the weight consumers give to his review.

So, while the FTC indicates that it will not go after the bloggers directly, it will go after the advertisers who use new media to get their message out. What will this mean? It may put a chill on ads, samples and…frankly… the goodies. And what the hell point is there blogging if one never gets the goodies??? Well, for those quasi-bloggers who are really professional writers (you know, the book writers) slumming with the cool kids, it will mean absolutely nothing because their revenue is through indirect advertising not the entirely more wholesome and less problematic direct moo-lah stream. Me, I actually get very few samples through the maple wall that is the US-Canadian border and the cash ads mostly come (however oddly) from other nations. But for the poor US based semi-pro beer blogger just looking for a little reason to go on, well, this may be the kick in the pants they don’t really need. So share a silent moment, if you would, for the blogger looking for that one little break, that something in return. It may just have become that bit less likely to arrive in the mail.

One last thing. I do think it’s great that the law is actually addressing new media (even if blogging was cool seven years ago and starting going lame about three years ago) but is this at all a likely outcome in an advertising model where a scurrying pack of small operators get paid peanuts to send out a viral message?

In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.

No, me neither. Ain’t going to happen.

¹[Ed.: lesson – don’t blog with an eleven year old goading you on to make the cartoon look sillier. Sorry Pete. Really. Sorry. Just think how boring this post would be without your input… err… participation… umm… objectification.]

BBADD: Beer Bloggers Against Drunk Driving

bbadd4I was thinking the other day about scare-dee cats. While good beer for fans is fun, easy, relaxing and genial for others it can be another nail in the coffin of the moral and secure society we all grew up with or supposedly wished we did. There is something about this dichotomy that makes no sense to me. Craft beer should be making alliances with parts of society which would enhance its vision. For some that is the swank or even the snob but I don’t buy that either. I go to a fine restaurant about six times a year… maybe. Pinning craft beer’s star to fine food is niche and excludes. Similarly being pals with brewers or considering them rock stars is the slightly embarrassing refuge of needy geeks. Not to mention a bit of a sidetrack.

There are bigger issues which neither embarrass or exclude. One of the biggest problems related to drinking is, of course, driving. And drunk driving is primarily a problem caused by driving. No car, no crime. Lew posted about this today in relation to New Jersey’s Flying Fish’s Exit Series beers. When I pointed out that the state’s executive director of MADD had changed her view, Lew commented “Craft brewers and craft beer drinkers do NOT take this seriously enough.”

That was my moment. I was all ready to blast craft brewers for their inaction on the question when I thought about what Lew wrote a bit more. It’s true – craft beer drinkers do not take drunk driving seriously enough either. So we will from now on. By being BBADD. I am going to think about this a bit more and suggest that it is the role of beer fans to promote safe drinking, to present the responsible beer geek as the guy who takes pal’s keys or takes the cab or the bus… or acts as designated driver. We need to ask craft brewers to do the same. For me, this is a no-brainer. Craft brewers have the opportunity to be fight drunk driving and place themselves in the lead of the cause. Social responsibility in the cause could develop as a distinguishing aspect of being a craft brewer and a craft brew fan. There might also be an alliance MADD would welcome one day to confirm they are not the new dry but truly anti-stupid-death. But until that day comes, we can be BBADD to prime the pump.

So, spread the word. Paste the logo at your website. And I know it’s a bad BBADD logo up there so if anyone can make it better or, you know, bad ass or sick or whatever fill you boots. Write a post. Tell a friend. However you relate to beer, make sure it is BBADD.

But Isn’t Taxing Beer The Third Oldest Profession?

It is interesting to follow beer fans in different jurisdictions in the US and the UK react to various plans to use beer as one way to cope with the global economic crisis. The British Beer and Pub Association backed by CAMRA and many brewers is running the Axe the Beer Tax campaign. States like Illinois are thinking about making changes while others like Wisconsin may leave them where they have been for forty years. Jay points out that the US Federal tax might be tripled from 18 to 45 bucks a barrel but is that really stupid or just reality in an economic collapse? Just as it makes no sense when a certain sort of politician advocates for lower tax on business income to get small businesses started – no sense because they have no profits to call income at that stage – similarly, in a downturn, you can’t raise taxes on the limp sectors of the economy economic activity. So, if there are going to be taxes – and, yes, there are going to be taxes – why should beer be exempt?

Amy Mittleman in Brewing Battles points out that modern taxation policy was largely created in the mid-1860s to react to the nation’s financial need to pay for the Civil War. Beer and brewing was the chosen conduit for the taxation as was follow existing European models with the aim of creating the greatest level of consumption and therefore the greatest revenue stream. She also points out that the Federal beer excise tax on beer was set at 9 dollars a barrel almost six decades ago under the Truman administration. The tax level now in after inflation dollars has simply not kept up given $100 in 1952 is now worth $798.87. Fully adjusted taxes would make for about $72 per barrel of Federal excise today at Truman’s rates. Obama’s Senate pals are considering $45. Jay quotes Jeff Becker of the Beer Institute as part of his argument:

In 2008, members of the beer industry paid more than $41 billion in taxes at all levels of government and provided jobs to 1.9 million Americans. Any proposed tax increase would severely offset this important economic contribution.’”

Really? Any tax will threaten it? Will “wipe out an industry”? Seems like the socialists do pretty well on the beer consumption scale. Look at it this way. In these tough economic times there are two western economies which are sort of standing out. Norway is booming and the Obama administration is looking to dull old Canada for banking regulatory lessons. Despite cursing it as we do, both Norway and Canada beer fans live in cultures with a pay-as-you-go mentality with high beer taxation. When I was a kid in Nova Scotia the beer cases even had “includes health tax” written on them right next to “union made” right on top. We paid the tax and were quite happy when the ER visit didn’t turn into a question about could we afford it. We also had no choice. Unlike today in the UK, there was no cheap booze alternative undermining the marketplace in the Maritimes. Well, except in PEI… but that is another matter.

Look, I am not going to say “oh, goodie goodie goodie, a new tax” but at the end of the day isn’t there an effort going on to somehow roll back the clock to about 1857 when shock and dismay is expressed over taxes on beer even in a time of economic recession?

PGP 4.0: Is There An Anti-Pub Game Movement?

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I think the Pub Game Project is the only beer related movement which has taken off with less haste than Lew’s recently reinvigorated Session Beer Project, now with its own blog and Facebook group. No time for social networking with the PGP as the only digital handiwork it should ever give rise to is a good round of shove ha’penny. Yet apparently (but much to my surprise) the PGP actually has enemies in very high places in Maryland:

A veteran state senator has abandoned his effort to ban drinking games such as beer pong and flip cup in Baltimore City bars in the face of a growing online lobbying effort. Sen. George W. Della Jr., a Baltimore Democrat, said such games encourage excessive drinking, which leads to raucous behavior in city neighborhoods. A bill he introduced late last month would have outlawed any games that award drinks as prizes in city taverns.

Wow! And the synopsis of the proposed law provided by the State Senate is even grimmer characterizing it as: “prohibiting a holder of a retail alcoholic beverages license or owner or operator of a bottle club from allowing drinking games or contests on the premises.” What is a drinking game? Darts where the loser buys drinks? What other pub games could fall under this law?

Sure, this is aimed at beer pong and is stoked by incidents like the banning of the game by universities. But this clearly goes further as the text of the bill itself indicates: warning, pdf! The proposed section 21-105.1(B) states that no license holder may allow the playing of

…a game commonly known as beer pong or any other game or contest that involves drinking alcoholic beverages or the awarding of drinks of alcoholic beverages as prizes.

I read that as very broad and going well beyond beer pong or drinks as prizes. Oddly, the proposed law applies only to Baltimore but, if violated, a licensee could be fined or even have their license pulled for allowing this somewhat commonplace if not traditional pastime. People playing games as they are enjoying drinks – even games involving drinks. Must be wicked.

It all reminds me of the steps taken in mid-1600s England to ban the toasting to the health of this politician or that member of royalty – not because it was unhealthy and led to over drinking and not because it was loud. It was because it was suspected as being seditious. Whisperers. Pamphleteers. Are these beer pong players, these darts for beer gangs, these shove ha’penny men not the same thing, the beginning of a modern day thin edge of a wedge? Never mind of what the wedge consists. Those kinds of questions might raise eyebrows. Best to know your place if you know what’s good for you. Wouldn’t want to be known as a pub gamer.

Great Summing Up Of The Shadowy Portman Group

The news last week of the shadowy Portman Group‘s abandonment of its efforts to “remove interestingness caused by the more clever smaller competition”¹ from beer shelves of Britain at least in relation to one beer, Orkney’s Skull Splitter, is neatly summarized by Roy Beers in The Publican today, including this telling passage:

It mattered nothing to the Portman Group that (“Mr, to you”) Skull Splitter – nickname for Thorfinn Hausacluif – was historically the 7th Viking jarl of Orkney; or that he has as much right to have a beer named after him as, say, Harald Godwinson or Hereward the Wake. Or William the Bastard. It didn’t signify, either, that the typical Skull Splitter drinker is over 35, possibly a member of CAMRA, and has exceedingly good taste in the matter of high quality strong beer. Of the sort you can savour by a great log fire. Exactly why it has taken the Portman Group so many years to discover this potentially havoc-wreaking brand is a mystery, but perhaps what’s most encouraging about the story is the overwhelming support for the brewery and its beer, with prominent politicians joining the clamour for Skull Splitter’s survival.

I would also add this: why did it take the shadowy Portman group that many years to discover Britain has a Viking history. I am an immigrant’s kid over here in Canada and I – by my name and the village of my mother’s birth – was well aware that Skull Splitter was a reference to the actual Viking history of the actual people in the actual land. That is the thing about your self-appointed betters – if they were actually your betters, you wouldn’t need the self-appointment because they would carry the authority that comes with making good sense.

¹Not quite the actual charge laid in the case.

 

 

BrewDog And Skull Splitter Face Humourless Tribunal

Following up on a story we discussed last May, tomorrow’s edition of The Independent tells the sad tale of how both BrewDog and the Orkney Brewery, makers of Skull Splitter, have had a ruling made against them by the shadowy Portman Group – described by The Independent as a self-regulating industry body. Which sounds a lot like another way of saying their competition. Their larger duller competition.

It decided Rip Tide’s description as a “twisted merciless stout” would be associated with antisocial behaviour, while the claim that Hop Rocker was a “nourishing foodstuff” and that “magic is still there to be extracted” implied that it would enhance physical and mental capabilities.

The wisdom did not stop there. Apparently, Orkney’s Skull Splitter “was associated with violence and also could be a reference to its effect on the drinker’s head.” However silly, these macro-saft makers with gavels actually have the power of persuasion and can use that power to affect the marketplace they and their powerless competition work within. Can you see a problem with that? Orkney has issued a press release that says this turn of fate may lead to the brand being pulled even though it is a former Champion Winter Ale of Britain. The BBC has more on the Skull Splitter story.

BrewDog is taking the even higher moral ground by calling for the shadowy Portman Group to be scrapped, according to this story. James Watt, managing director of BrewDog is quoted as saying ‘”[i]t is alarming that an unelected, unrepresentative industry cartel can simply crush the foundations on which our democracy is built.” Can I have an amen? I believe reference to the Declaration of Arbroath is of comfort to we Scots in moments like this.

Full disclosure: James Watt writes me emails once in a while, is named after my Dad’s hometown’s favorite son and is giving prizes for the photo contest. And I like him and his company more than the shadowy Portman Group.

Who Was The Last Slave In Ontario Or Kingston?

levi1Right: Levi Veney, ex-slave who lived in Amherstburg, taken at J. D. Burkes’ store, 1898. Archives of Ontario. Click for large view.

I am not one of those anti-MSM, “the boogiemen are just round that corner now that Democrats are here” sorts of persons that have been so tediously active in the blogosphere in the last 24 hours…but when I heard a self-congratulatory reference in a CBC radio piece suggesting Canada not having a history of race issues as had the USA, it did grate on the ears. Reminded me to switch stations. But it got me thinking…there must have been a last slave in Canada. We traded in human souls with the best of them before a certain date, before the long path to today began. Google Books to the rescue with the 1869 book History of the Settlement of Upper Canada (Ontario), with Special Reference to the Bay of Quinté by Wm. Canniff. where we read at page 574:

…when the British Act of Emancipation was passed, in 1833, setting free the slaves in all parts of the Empire, there was no slaves in Canada, Upper or Lower. Thirty years previous had the evil been crushed in Lower Canada, and forty years before Upper Canada had declared that it was “highly expedient to abolish slavery,” and had enacted laws to secure its abolition…

The story goes on to mention the slaves of of the first Loyalist familes who settled along the eastern shore of Lake Ontario and down the St. Lawrence and, at pages 576 and 577 there is this extraordinary statement:

We have before us the copy of an assignment made in 1824 by Eli Keeler, of Haldimand, Neweastle, to William Bell, of Thurlow, of a Mulatto boy, Tom, in which it is set forth, that the said boy has time unexpired to serve as the child of a female slave, namely, ten years, from the 29th Feb. 1824, according to the laws of the Province ; for the sum of $75. Probably, this was the last slave in Canada whose service closed, 1835.

It appears from that reference and a few others that a child of a slave was a slave until majority during the transitional period. So who was the last one alive? Probably not this gentleman, given Mr. Veney above, but he is worth mentioning now as Canniff did at page 577:

In the Ottawa Citizen of 1867, appeared the following: A BRITISH SLAVE — An old negro appeared at the Court of Assize yesterday, in a case of Morris vs. Hennerson. He is 101 years of age, and was formerly a slave in Upper Canada, before the abolition of slavery in the British possessions. He fought through the American war in 1812, on the side of the British; was at the battles of Chippewa and Lundy’s Lane, and was wounded at Sacket’s Harbour. He is in full possession of all his faculties. He was born in New York State in 1766, and was the slave of a TJ. B. Loyalist, who brought him to Canada. He was brought to this city to prove the death of a person in 1803, and another in 1804.

If he was wounded at the 1812 Battle of Sackets Harbor (there was another in 1813) that means he was at least in Kingston then as the British force was based here, a generation before the Martellos were built. I will have to see if that case is reported, if it actually gives his name.