Despite the unpoetic context, the title of this post has a pleasing euphony – Jack Kerouac might have intoned it with soft jazz inflections. Nonetheless, the words, far from titling a poem, denoted only a court in Missouri, one that decided an important trade mark case in 1880. (The court’s designation is now Missouri Court of Appeals, Eastern Division).
The court affirmed the trial decision that found in favour of the plaintiff, Charles (Carl) Conrad. Conrad originally owned the Budweiser brand and formula. From its launch in 1876, Anheuser-Busch (A-B) of St. Louis brewed and bottled the beer for his wine and liquor agency. In 1883, after financial reverses, Conrad assigned all his rights to A-B, which therefore took the benefit of the 1880 ruling.
The case is the first of a large number, certainly over 100, that have since been tried internationally involving the Budweiser name and trademark. Many cases into the 1970s involved contests between A-B and American or Canadian brewers that sought to use the word Budweiser or a confusingly similar name. The defendants in these cases argued that Budweiser was a style of beer, a type of pale lager originating in what is now the Czech Republic, and not a name anyone could monopolize.
A-B won most of these cases, including a battle royal with Frederick Miller Brewing in Milwaukee in 1898, but it lost a few as well. A small Pennsylvania brewery, Du Bois Brewing, continued successfully to use the Budweiser name to promote its beer until about 1970.
Today, the contests mainly arise between A-B and Budweiser Budvar (Budějovický Budvar), one of two breweries in the Czech Republic that signed deals with A-B, in 1911 and 1939, to apportion world rights. (Budweis is an older, German name for the city, but I use it here for convenience).
The second of these breweries is now owned by A-B but Budweiser Budvar remains independent and continues to market its (excellent) beer in many parts of the world. In most E.U. countries, A-B is not permitted to use the name Budweiser. In some places though, both brands may appear concurrently, e.g., in the U.K.
In Italy for example, Budweiser Budvar sells its Budweiser under that name, while A-B must be satisfied to call its product Bud. In North America, Budweiser Budvar sells its product as Czechvar.
It is a complex business and legal story, but my interest here is to explain what the 1880 case decided. I comment as well on the contemporary make-up of Budweiser.
Conrad used an intricate, triple C logo for the brand. He hired a designer who later sold a similar design to Joseph Uhrig Brewery in St. Louis, involving a triple B. The Uhrig brewery was no small upstart, it was well-known in the city and continued in business after founder Joseph Uhrig died in 1874.
Conrad felt that the triple B logo, in conjunction with the Budweiser name, meant Uhrig was passing off its product as Conrad’s, hence diverting sales and profits that rightfully belonged to Conrad.
The court’s decision impresses its clarity and (in my view) reasonable finding.
Most 19th century court cases I’ve read, mainly British and Canadian ones, were written in a fairly ornate style. This means long, winding sentences with numerous clauses and subordinate clauses. It was the style of the day, noticeable also in literature.
If those judges were writing now about the Internet, say, it might sound like this: “I think most of the general populace today, but certainly my learned brothers who concurred unanimously with the result I will presently adumbrate, would cavil from the notion that the emergence and present commercial standing of what is generally called the “Internet” is not of the very first importance to commercial, political, civic, and social life. Indeed, almost no communications of any sort, save perhaps those of a stricly private and affective nature, can be effected without recourse to the Internet”.
The American court, to its credit, didn’t write like that. The language is plain but clear, and can be understood by the layman.
The Missouri judges held that Conrad had exclusive rights in the label, including the Budweiser name, since the public associated Budweiser beer with that source. The court held that defendant contravened those rights by using a similar design in conjunction with the word Budweiser to sell, moreover, an inferior product. A relevant factor was the fact that Budweiser cost $2.00 more per barrel to produce than ordinary beer, such as Uhrig’s product, which thus had potential to damage Conrad’s reputation.
Uhrig’s argument that Conrad was misleading the public by claiming a process that, i) did not in fact exist, ii) diverged in some ingredients from what the label claimed, was not accepted by the court.
The court did not hold that A-B had an enforceable trade mark in the name Budweiser, but rather that Uhrig’s use of a similar label in conjunction with the Budweiser name violated common law rights of Conrad.
The court seemed to hold that while the brewing method of Budweis was not unique even in Europe, Conrad used enough elements of the Budweis process to justify viewing his product as a high-class beer.
In this regard, the court noted that Conrad used all-imported hops, often (but not always) Saaz, and barley of the first quality, albeit American and not imported barley. Despite the fact that Conrad’s label (see above) advertised Saaz hops and Bohemian malt, the court felt he proved his claim to making a superior product. In other words, the deviations that existed were not significant. In the court’s words, Conrad was not “imposing” on the public.
The word rice does not appear in the judgment. Today it appears that Budweiser beer uses about 30% rice in the mash.
Did Conrad use rice from 1876-1883, or part of that period? His labels did not refer to rice. It seems rice first appeared on the label about 1908 according to a chronology (2006) of the Conrad era and label history by Bill Lockhart, Pete Schulz, David Whitten, Bill Lindsey, and Carol Serr. 1908 is many years after A-B succeeded to all rights to the brand.
Maureen Ogle’s Ambitious Brew: The Story Of American Beer (2007), in a detailed discussion of Budweiser that takes in the Conrad-Uhrig case, seems to state rice was always used, at least that’s how I read it. If that is so, maybe neither side thought it useful to raise the issue in the 1880 case.
If Conrad raised it, it would take away from his claim of following a Bohemian process, as it seems clear Czech pilsner was always all-malt.
From the defendant’s standpoint, perhaps referring to rice risked it admitting that it made a cheaper product, i.e., assuming Uhrig did not know Conrad used rice, or wasn’t certain. The 1898 case involving Miller Brewing also didn’t refer to rice. It referred to other attributes of A-B’s Budweiser, including that it used a Bohemian yeast and barrels coated with Bohemian pitch, but rice is not mentioned.
And once again, Conrad used some domestic malt even though the label stated imported. And sometimes he used non-Saaz, but still imported, hops. Perhaps, in line with the 1880 court’s expansive view of the label, rice was always used in Budweiser but the name was only written on the label when the law required it circa 1908.
But perhaps in 1883 when A-B took over the brand, rice was then introduced – it seems possible at any rate.