Due to the overwhelming number of requests for comments about our Trademark of Rude Elf’s Reserve, The Brew Works is offering the following Statement:
Five years after the registration for Fegley’s Brew Works RUDE ELF’S RESERVE issued, Troegs is trying to take the registration away, asking the US Trademark Office to invalidate it.
In so doing, Troegs seeks to monopolize the word elf in advertising its beer. We do not think the law recognizes such exclusivity and believe other brewers who have used elves longer than Troegs and have not complained about each others’ or Fegley’s use will also take part in preserving their rights.
Troegs must prove a likelihood of consumer confusion, that is, that consumers believe Fegley’s products are associated with, endorsed by or originate with Troegs. Under the trademark law, likelihood of confusion depends on many factors including the similarity of the marks in appearance and overall commercial impression and the strength of the complainant’s mark. A mark’s strength in turn depends on the number of third parties in the marketplace using the same or similar designations as those in dispute. Here the parties’ brands have only a single term in common, “elf” . There is a long tradition in this country of using the terms “elf” or “elves” in connection with holiday beers, ales and lagers. In addition to the parties in this litigation there are at least one dozen beers produced by other parties including Shelton Brothers and La Chouffe that use the term elf and/or elf imagery. Of the (at least) one dozen parties offering beers, a single producer, Shelton, sells six of them under the mark BAD ELF and variations thereof. Under the circumstances, we believe consumers are readily able to differentiate among different “elf” beers and do not associate the term “elf” with any single beer producer. Therefore we think consumers are not likely to believe any party’s beer including the term elf, is related to any other beer that includes this term. Moreover on the labels and cases for their respective products, both parties use their house names (Fegley’s Brew Works and Troegs), Troegs uses additional words to describe the flavor of its beer, and Fegley also uses the word “Reserve”; also the parties’ illustrations of elves simply look different. These factors further support that there is not likely to be consumer confusion.
Moreover the marks on the labels and cases for their respective products are very different. Fegley’s filed an application for the Trade Mark of “Rude Elf’s Reserve” on June 21st 2004 with the following elf image (shown below), on all of their beer labels for sale.
At same time of Fegley’s original filing in 2004, the only Troeg’s mark of Record was the following image (shown below) and the name…
“THE MAD ELF TROEGS HOLIDAY ALE BREWED WITH HONEY, CHERRIES & CHOCOLATE MALTS“.
As these images make clear, both parties use their house names (Fegley’s Brew Works and Troegs), Troegs uses additional words to describe the flavor of its beer, and Fegley also uses the word “Reserve”; and the parties’ illustrations of elves simply look different. These factors further support that there is not likely to be consumer confusion.
1. Rude Elf’s Reserve Mark filed June 21st 2004: http://tarr.uspto.gov/servlet/tarr?regser=registration&entry=3047757
2. Other Elf mark: http://tarr.uspto.gov/servlet/tarr?regser=registration&entry=2887242
3. Official Petition information: http://ttabvue.uspto.gov/ttabvue/v?qt=adv&procstatus=All&pno=&propno=&qs=&propnameop=&propname=Rude+Elf&pop=&pn=&pop2=&pn2=&cop=&cn=