This follows on our first post today, a Case of Bass.
Another day, another case, another defendant’s beer. Another dollar too, or pound, depending how the scales of justice tip.
In the English Chancery case In Re Worthington & Co.’s Trade Mark heard in 1879, Bass took action against another brewer, Worthington & Co., seeking to register a triangular symbol to promote its beer.
(Worthington & Co. had not yet merged with Bass, that came later). Worthington had bought a brewery called Beccles, in Suffolk. Worthington devised a trade mark that showed the charming Beccles church enclosed by a double-bordered triangle.
No colour was claimed, this was not possible for some reason. The decision reproduced examples of each label. To me they looked quite different, but Bass won again.
The reason: the label might be printed in red or another colour, and the church would be obscured, with a greater likelihood of resemblance resulting.
It being an appellate case heard by a panel, one judge dissented. He argued it was not proper to assume Worthington might print its design in a dishonest way, to mislead consumers. Rather, one should assume it would use the label in black and white, as registered, on its face quite different to Bass’s design.
The judge, Mr. Justice Cotton, in this case distinguished between beer types, something his American counterpart refused to do 20 years later. Bass had argued that the market knew its beer as the “triangle ale”, a fact the American court of 1899 accepted.
Lordship Cotton, showing an impressive grasp of beer knowledge, quickly dismissed this. He stated triangle ale simply meant Bass Pale Ale as against Bass’s Burton ale, which used a lozenge (diamond) symbol. He wrote that triangle ale was written in trade orders to ensure Burton ale was not shipped, and the term had no further significance.
For mystified readers, since both beers were brewed at Bass in Burton, Burton ale was another type: darker and stronger than Bass Pale Ale. In fact, Burton ale was the type historically associated with Burton and region, but was eclipsed from the early 19th century by pale ale.
Beer writer Michael Jackson, after citing a poem lauding “Old Burton”, brought out the difference in The World Guide to Beer (1977):
Even in the 1750s, the brewers of the Trent Valley had already been famous for at least 100 years, and had been mentioned in the writings of Defoe, but the emergence of pale ale as a new style gave them the chance to sparkle.
Mr. Justice Cotton was sympa, whether from personal proclivity or evidence in the record, is hard to say.
And so, nothing is absolute, distinctions among beer types in a general class shouldn’t matter in larger society, until they do.