Thursday, July 28, 2005
Schlitz, Miller and Others Made Beers They Called ‘Budweiser’
By ROGER M. GRACE
It was around 1876 that one Charles W. Conrad (also known as “Carl Conrad”) began bottling and distributing Budweiser beer, brewed for him by Anheuser & Co. of St. Louis. Budweiser means “from Budweis.” Conrad intended that his brew resemble the lager, light in color, produced in Budweis, a small town in Bohemia (now part of the Czech Republic).
He imported hops and barley from Europe so that the same ingredients used by brewers in Budweis would go into his beer.
Given that geographical names were not protectible as trademarks, it was foreseeable that if Budweiser became a success, rivals would seek to adopt that description. Conrad’s beer did, in fact, rapidly gain popular favor—particularly in California and Texas—and the name “Budweiser” was soon applied by others to their own brews.
Among those seeking to use the name “Budweiser” in a generic sense was the Joseph Uhrig Brewing Company. Conrad brought suit and a $4,175 judgment in his favor was upheld in 1880 by the St. Louis Court of Appeals. However, that victory—based on Uhrig’s labels and bottles imitating Conrad’s—was overshadowed by language in the opinion questioning whether Conrad had the sole right to use of the description “Budweiser.”
“Let it be granted that no one can have an exclusive property in the words ‘Budweiser Lager-Beer,’ ” the court said, adding:
“The injury done in this case by defendant to plaintiff was, not in calling the beer sold by defendant Budweiser beer, but in affixing to the bottles of defendant’s beer a mark calculated to deceive the ordinary purchaser into the notion that the bottled beer of Uhrig was the article so carefully prepared by Conrad, by whatever name it might be called.”
The implication was that others could use the name “Budweiser”—they just couldn’t pass off their brews as being Conrad’s.
Among others who started making “Budweiser” beer was The People’s Brewing Company which in 1899 introduced “New Brew ‘Budweiser.’ ” An ad in the Trenton (New Jersey) Times proclaimed: “As a tonic and strengthening beverage it will prove the best in the market.”
Schlitz also made a “Budweiser” beer. An 1891 ad in the Stevens Point (Wisc.) Journal listed the beers sold by the company in kegs. They were “Budweiser, Pilsner, Wiener, Erlanger, Culmbacher, and ‘Schlitz-Brau’.”
Another competitor was Fred Miller, whose successors are today marketing Miller Lite and other beers. An ad that ran in 1890 in the Bismarck (North Dakota) Daily Tribune said:
“Kuntz and Fisher assure their lager beer patrons that they need hare no fears of deprivation of their customary cool and refreshing draughts, as they have on hand a large supply of ‘original’ packages of Fred Miller’s celebrated Budweiser.”
Suit for injunctive relief was brought against Fred Miller Brewing Co. by Anheuser-Busch Brewing Assn., the new name of Anheuser & Co. It became owner of the Budweiser brand when Conrad assigned his rights to it in 1891.
A federal judge said at the outset of a written decision in 1898:
“Although it is undisputed that this designation has been employed by the complainant and its predecessor in business, for about 20 years, as the name of a special manufacture of beer, for which wide reputation and extensive trade has been obtained throughout this country and abroad, the name is distinctively geographical (referring to a place in Bohemia, Austria, called ‘Budweis’); and it is both conceded and indisputable that this use confers no property right or monopoly in such name, as a trade-mark.”
There was no suggestion that consumers were being duped by Miller. His labels and bottles did not resemble those of Anheuser-Busch.
Did the court, then, deny the injunction?
No. The judge found that although the trade name “Budweiser” was not protectible, per se, Anheuser-Busch had established unfair competition. Miller’s light-colored beer, resembling the plaintiff’s product, “was not called ‘Budweiser’ in good faith and ingenuously,” the jurist ruled, finding that “the object of the christening” was “to take the benefit of the reputation so established” by Anheuser-Busch for the beer it called “Budweiser.” Miller’s use of that same designation must, he concluded, be enjoined.
In June of 1905, DuBois Brewing Co. of DuBois, Pa. began manufacturing “DuBois Budweiser.” In 1908, Anheuser-Busch sued the brewery, but voluntarily dismissed its action the following year. Between 1920 and 1939, it sued nine other companies over their use of the word “Budweiser,” but did not reinstitute its action against DuBois until 1940.
How did the courts respond to an action filed 35 years after the alleged infringement started? Tune in next week to find out.
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