An amusing flurry of trademark disputes has occurred in my homestate of Vermont. Yes, amusing trademark disputes. This week, Magic Hat Brewery, of South Burlington, Vermont, sued West Sixth Brewery, of Lexington, Kentucky. The suit alleges that the Kentucky brewer’s logo copies the emblem of Magic Hat’s flagship beer, the “not quite pale ale” dubbed “No. 9.” Indeed, they are similar:
Both labels prominently display a numeral and an eight-point starburst, all enclosed within a circle. The “9” and the “6” are styled almost identically. According to the folks at West Sixth, their starburst is a compass, and thus the number six sits due west, forming a clever “west sixth” pictogram. From Vermont, meanwhile, we learn that Magic Hat’s star is actually “a dingbat,” a nonsense term that nonetheless seems appropriate to the town of Burlington.
I think the Kentucky brewer is in trouble here. Magic Hat trademarked the No. 9 in 1996; West Sixth created its logo just last year. There seems legitimate potential for confusion. Consumers “might see them as one in a series,” said a lawyer for Magic Hat. The “design. . . might lead people to believe they are from the same source.”
My hope is for a climactic courtroom cross-examination, in which the Magic Hat attorney asks the West Sixth brewmaster to drink a beer. As he imbibes on the witness stand, lifting and inverting the bottle, the “6” suddenly becomes a “9.” Jurors gasp, a lady faints, the defense demands a mistrial, and the judge gavels for order: a courtroom drama worthy of Clarence Darrow.
One week earlier, the Woodchuck Hard Cider Company, of Middlebury, Vermont, filed suit against the Woodchuck Coffee Roasters, of South Burlington, Vermont. The company argues that the coffee logo is “strikingly similar” to their cider design, and has “led to Vermont residents asking if the cider company has gone into the coffee business.”
“Woodchuck” is the local term for a hardy Vermonter, at ease in the cold rural north. The coffee roaster argues that a company can’t trademark a piece of state vernacular. Once again, however, I think the newcomers will have trouble. The labels are very similar: the mascot, holding food, with mountains behind, and a “Woodchuck” banner above. The cider trademark dates to 1991, while the coffee company formed in 2011. It’s a shame, because the coffee roasters have the better label, with a happy ground hog savoring his morning joe. That steaming mug looks fantastic. I can smell it from here.
Another Vermont case began in 2011, when an artist named Bo Muller-Moore sought to trademark a t-shirt slogan. Moore had stumbled upon his business a decade earlier, after a neighbor harvested a bumper crop of kale, and Moore printed celebratory shirts that read “Eat More Kale.”
This message somehow resonated with the state’s local-food, know-your-farmer ethos. The motto seems less about eating kale than embracing the Vermont mindset. Moore has sold thousands of shirts, each silk-screened by hand. When he sought a trademark, however, he got an angry letter from Chick-fil-A, the restaurant chain based in Georgia. Chick-fil-A (the name is pronounced “Chick Fillet”) sells chicken sandwiches under the slogan, “EAT MOR CHIKIN,” supposedly dietary advice from cows. Their lawyers called Moore’s shirts a “misappropriation of Chick-fil-A’s EAT MOR CHIKIN intellectual property. . . [and] likely to cause confusion.”
Likely confusion? How? As Moore’s lawyer said, “There’s no one out there that’s going to say, ‘I thought I was buying a Chick-fil-A product but I got this t-shirt.’”
Moore refused to back down, and the David-and-Goliath aspect of a powerful corporation harassing a silk-screen artist caught public notice. Vermont Governor Peter Shumlin pledged support, a legal defense fund was organized, and news outlets such as the Associated Press and The Economist published sympathetic coverage. “Eat More Kale” became a sort of populist political statement, and t-shirt sales soared. A film-maker began a documentary on Moore entitled “A Defiant Dude.” Near the height of the dispute, his annual shirt sales topped $40,000.
Meanwhile, the slow wheels of justice ground mercilessly, and last month the U.S. Patent and Trademark Office denied Moore’s application. They upheld Chick-fil-A’s infringement claim. The ruling is a model of soulless bureaucracy: the two slogans “urge action in the same way, only as to different substances, and both of them are commonly consumed types of food.” Clearly, someone at the Patent Office needs more kale.
Finally, this discussion recalls the most excellent prank in state memory. Sometime in 2008, female inmates at the Northwest State Correctional Facility, in St. Albans, Vermont, got creative. The women worked at the prison print shop, producing stationery, brochures, and reports. One assignment was to print decals for state police cruisers. The police crest depicts mountains, water, hay stacks, and a cow. Examine the cows above. On the left, we see the original police decal. To the right is the cow designed by the prisoners. The cow’s spots have changed. Here’s a close-up:
To those who still don’t get the joke: “Pig” is derogatory slang for “police officer.” The inmates must have laughed hard as decals left their shop to decorate the hood and doors of at least thirty police cruisers. The joke wasn’t discovered for four years (the pig is only about an inch long). The police took great offense, and everyone else laughed. The pranksters have never been discovered.
Dingbats, woodchucks, kale, and pigs: that’s the news from Vermont.