Anheuser-Busch Wins A Big Case In ’98

img_20161116_163722Among the early court decisions which established exclusive rights for Anheuser-Busch in the Budweiser name, the case against Fred Miller Brewing of Milwaukee in 1898 is probably most important. In that case, Miller had introduced its own Budweiser brand after a period of acting as distributor for A-B for its Budweiser.

Unlike the 1880 case involving Joseph Uhrig Brewing in St. Louis, Miller’s label did not seek to mimic A-B’s distinctive label.

At least, there was no obvious borrowing of what lawyers call get-up or trade dress. (You can see an example of Miller’s label here). But Miller did use the name Budweiser.

Miller argued it represented a style of beer which originated in Budweis, Bohemia (now České Budějovice), and anyone could sell his version, just as people sold Munchener beer (in the Munich style), or Pilsener beer (à la Pilsen).

Judge Seaman hearing the case didn’t buy it. He decided that by 1898, A-B had built up significant and valuable goodwill in the Budweiser brand, and was responsible for introducing the name to America. Therefore, it amounted to unfair competition for Miller to sell its Budweiser against A-B’s, it would appropriate profits and trade properly belonging to A-B. The judge held this without finding, as the 1880 St. Louis courts refused to find, that defendant had violated A-B’s alleged trade mark in the Budweiser name.

That is, at the time the courts held back from recognizing that A-B had an enforceable trade mark in the Budweiser name as such. That changed later. The two things are not the same, as an unfair competition complaint requires that both products be circulating concurrently for the upstart product to be enjoined from trading.

I am, too, in these notes discussing A-B’s claim to sole use of Budweiser from a domestic U.S. perspective, not an international one. Earlier I referred to the longstanding dispute between A-B and the Czech producer of Budweiser/Czechvar and how the marks may be used internationally at the present time.

In the extract of the case appended, there is a good short history of Budweiser’s origin and composition to 1898. I referred to some of these elements before, but here they can be read neatly in one place. In a nutshell, originally (for a “year or two”) the  “main” ingredients in Budweiser – its malt, hops, yeast, the pitch used to line the casks it was aged in – were imported from Budweis. After, some other ingredients were substituted, especially North American barley to make the malt.

We know from ads into the pre-Prohibition era that Saaz hops from Bohemia continued to be used for Budweiser, then as now a signature of Czech blond lager, although it seems sometimes other imported hops were used, often from Germany.

Net net, the court felt, as did the 1880 St. Louis judges, that the beer in ’98 resembled Budweis beer sufficiently – in other words the goodwill was connected to a distinctive, quality product, e.g., the light color and special flavour. Unlike in the 1880 case, the court refused to pronounce defendant’s beer as “inferior” but by 1898 that factor was not relevant. Enough goodwill had been built in the name to confer on it common law protection against a competitor, in the same market at least.

The word “main” as noted above makes me think this left room for rice to be used in the original recipe. It’s still not 100% clear (at least to me), but I incline that way, unless the court perhaps was referring to water in the mash, which had to be local. Water then was regarded as an important constituent of some beers, so I can’t dismiss that the court might have been thinking of that. But taking all with all, it is more likely I think the court was leaving room to consider that rice adjunct was used in the original recipe.

Rice must have been in use by 1898. A-B introduced Michelob as an all-malt product in 1896 so Budweiser must have been an adjunct brew, else the new product would not have been necessary, at least in the blonde lager category. But as malt constituted the bulk of the mash, and I guess too considering that rice adds little flavour, the quality of the malt and hops in the beer, and also the Budweis-origin yeast and pitch, evidently were considered the main factors to view the beer as Bohemian-type.

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