The title of this post has a pleasing euphony – I can almost hear Jack Kerouac intone it with soft jazz inflections. Nonetheless the eight words, far from titling a poem, denoted a Missouri tribunal which decided an important case in 1880. (The court is now called Missouri Court of Appeals, Eastern Division).
The judges, affirming the decision below, found in favour of the plaintiff, Charles (Carl) Conrad. Conrad was the initial owner of the Budweiser brand and formula. From the beer’s launch in 1876, Anheuser-Busch brewed and bottled it for his wine and liquor agency. In 1883 after financial reverses, Conrad transferred the rights to Budweiser to A-B, which thus benefitted from the court decision.
The case is the first of a large number, certainly over 100, which have since been tried involving rights to the Budweiser name and trademark. Many cases into the 1970s involved contests between A-B and American or Canadian brewers seeking to use the word Budweiser or a colourable imitation. These defendants argued that Budweiser beer was a style of beer, a type of lager, not a name someone could acquire exclusive rights to.
A-B won most of the cases, including a fight with Fred. Miller Brewing of Milwaukee in 1898, but lost a few as well. A small Pennsylvania brewery, Du Bois Brewing, continued to use the name Budweiser to promote its beer until about 1970.
Today, contests still arise in various countries, mainly between A-B and the Budweiser Budvar brewery (Budějovický Budvar), one of two breweries in Budweis, Czech Republic which signed deals with A-B in 1911 and 1939 to split up world rights. Budweis is the older, German name for the city, but I use it here for convenience.
The second brewery is now owned by A-B but Budweiser Budvar is independent and continues to market its Budweiser in many parts of the world. In most European countries, A-B is not permitted to use the name Budweiser. In some places, both brands may appear concurrently, e.g., the U.K. But 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, and different aspects have been canvassed in various consumer and legal publications.
My interest here is to explain what the first case, in 1880, said, and focus too 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 to operate after founder Joseph Uhrig’s death in 1874. The Uhrig brewery didn’t follow every element of Conrad’s design but Conrad felt that the triple B logo, in conjunction with the Budweiser name, meant Uhrig was passing off its product as Conrad’s, diverting sales and profits.
The court’s decision is exemplary for its clarity and (in my view) reasonable result. Most of the 19th century cases I’ve read, and I’ve read a few in the course of acquiring three legal degrees, were English and Canadian. These decisions generally were written in a fairly ornate style, with long sentences and numerous clauses and subordinate clauses. It was the style of the day – classic Victorian.
If those English judges were writing now about the Internet, it might sound like this: “I think most of the general populace today, and certainly the learned brothers who concurred unanimously (and felicitously) with me in the result I will presently adumbrate, would cavil from the notion that the emergence and present commercial standing of what is generally known as the “Internet” is not of the very first importance to commercial, political, civic, and social life. 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’s business had exclusive rights in its label, which included the Budweiser name, in that 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 which, 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 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 name violated common law rights Conrad had developed in his product.
The court seemed to find that the brewing method of Budweis was not unique even in Europe, but that Conrad used enough elements of it to support his product being a high-echelon beer.
In this regard, the court noted that Conrad’s Budweiser used all-imported hops, often (but not always) Saaz, and barley of the first quality, albeit American not imported barley. Despite the fact that Conrad’s label (see above) advertised Saaz hops and Bohemian malt, the court felt the actual practice of the brewery supported its claim to making a superior product and the deviations which did exist were not important. In the court’s words, Conrad was not “imposing” on the public.
The word rice does not appear in the judgment. Today certainly and for a very long time, Budweiser employs about 30% rice in the mash.
Did Conrad use rice in the recipe from 1876-1883, or for part of that period? His labels did not refer to rice. Indeed it seems rice first appears on the label c. 1908 according to this 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 took over all rights to the brand.
In Maureen Ogle’s Ambitious Brew: The Story Of American Beer (2007), a detailed discussion of the roots of Budweiser, which takes in the Conrad-Uhrig case, seems to suggest rice was always used, at least that’s how I read it. If it was, perhaps neither side thought it useful to raise the issue in the litigation. If Conrad raised it, it would take away from its claim of following a Bohemian process for the beer, as to my knowledge the Czech pilsner or pils-style beers were always all-malt.
From the defendant’s standpoint, perhaps referring to rice risked defendant admitting it made a cheaper product, i.e., on the assumption Uhrig’s did not know, or was not certain, Conrad/A-B used rice. The 1898 case involving Fred. Miller also didn’t refer to rice. It referred to many other attributes of A-B’s Budweiser including that it used a Bohemian yeast and casks coated with Bohemian pitch, but rice was never mentioned.
Once again, Conrad was using domestic malt even though the label claimed imported, and sometimes used non-Saaz (but imported) hops. Perhaps in line with this liberal view of the label’s function, rice was always a component of Budweiser but only appeared on the label when statute law finally required it, c. 1908 presumably.
But it is also possible I think that rice was introduced at a later date, maybe in 1883 after A-B took over the brand.