Benjamin Appelbaum, Attorney at Law

Court says brewery can trademark Schlafly name

A federal court has ruled that a brewery can trademark the word Schlafly despite the protestations of the family whose name it is. New Jersey readers might be familiar with the late Phyllis Schlafly, who was a conservative activist. Some members of her family have opposed the trademarking of their name by a company called Saint Louis Brewery LLC. One of the company's co-founders is Thomas Schlafly, a nephew of Phyllis.

The brewery has been selling beers carrying the Schlafly logo since 1991, and it sold 74.8 million servings of the beer through 2014. According to Andrew Schlafly, the lawyer who argued against registration and one of Phyllis's sons, trademark law says words that are primarily surnames should not receive trademark registration or protection.

A circuit judge with the U.S. Federal Circuit Court of Appeals said the name Schlafly was not merely a surname as it has acquired distinctiveness and secondary meaning. Trademarks can be issued when that happens, according to the judge.

Before she died, Phyllis Schlafly, along with her son Bruce, argued that the brewery trademarking their last name could hurt their reputations by tying them to the alcohol industry. Bruce Schlafly is an orthopedic surgeon. The trademark application in the case was originally filed in 2011. Andrew Schlafly said his clients intend to appeal the ruling to the U.S. Supreme Court.

The most important assets that many businesses have are intellectual property. People who have questions about the process of securing a trademark might want to speak with an attorney with experience in trademark law about drafting and filing application materials or communicating with the U.S. Patent and Trademark Office. An attorney might secure trademark protection or enforce a trademark that is being infringed. Consistently exercising intellectual property rights can be an important part of keeping them.

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Benjamin Appelbaum, Attorney at Law - Intellectual Property

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