Search Team

Search by Last Name
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
X
Y
Z

Schlafly v. Saint Louis Brewery, LLC

Prominent Name May Be Registered As Trademark, Where Acquired Distinctiveness Proved

Schlafly v. Saint Louis Brewery, LLC, __ F.3d __, 2018 WL ___ (Fed. Cir. Nov. 26, 2018) (NEWMAN, Mayer, Stoll) (TTAB) (2 of 5 stars)

Fed Cir affirms denial of opposition by Bruce Schlafly, with the estate of his mother Phyllis Schlafly, to registration of the word mark “SCHLAFLY” for various types of beer. That SCHLAFLY was a surname (of SLB’s co-founder, who was the nephew of Phyllis Schlafly; and of Mrs. Schlafly and her son) did not preclude registration. Sufficient evidence supported the Board’s determination that SCHLAFLY had acquired distinctiveness, particularly in connection with SLB’s sales/marketing of SCHLAFLY beer since 1991, and its current sales in 15 states (plus DC) and 14,000 retail locations. That Phyllis Schlafly was a prominent public person in her own right does not, without more, undermine the Board’s analysis. In re Etablissements Darty et Fils, 759 F.2d 15 (Fed. Cir. 1985), does not support Mr. Schlafly’s contention that a surname should not be registrable as trademark absent proof of a “change in significance.”

The opinion also rejects Mr. Schlafly’s arguments that the registration violates the First and Fifth Amendments to the Constitution as insufficiently developed. Citing Acceptance Insurance, 583 F.3d 849 (Fed. Cir. 2009), the opinion notes that for Fifth Amendment purposes, trademark registration is not a taking for government use.

KEYWORDS: TRADEMARK; ACQUIRED DISTINCTIVENESS