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1. 800. 973.1177

COURT REPORTER

THIS BUDD’S FOR THE LAWYERS [by James Kilpatrick] Back in 1995, two enterprising women in New England had a great idea. They had been reading Herman Melville’s posthumous story of “Billy Budd, Sailor.” The hero struck them as a particularly manly fellow. Surely, they mused, some manly product should bear so bold a name — a product, for example, such as a really good beer.

Thus was born a trademark case now pend-

Yes! Lawyers did what lawyers do. In the

with the producer, and 5 percent believed

ing in the U.S. Supreme Court on a petition

summer of 2003 Goliath sued David. It was a

that whoever put out the beer had permis-

for review. My guess is that the high court

suit for summary judgment. At a bench trial

sion from Budweiser to do so. The court’s

will sip not even a taste of Billy Budd Classic

before U.S. District Judge Joseph A. DiCleri-

addition suggests that federal judges may

American Ale, but Lisamarie Sapuppo-Ber-

co. the incriminating facts soon emerged. The

be even worse at arithmetic than newspaper

trand and Bernice Keeney, the entrepreneurs,

two ladies, operating as Caught-on-Bleu Inc.,

reporters.

will have had a good run for their money.

had innocently contracted for the produc-

The case will be of interest not only to friends

tion of an ale that would bear the name of

So endeth, for now, the short saga of Billy

of the malty brew but also to friends of trade-

Melville’s hero.

Budd, the brief-lived brew of New Hampshire. Judge DiClerico entered an injunction barring

mark law. This is a highly specialized field, marked by conflicting arguments over law

The eponymous product was to be a classic

its production under that offending name,

and fact and the weight to be given to public

American ale, “a bountiful blend of malts

but he refused further relief. The defendants’

surveys. Here the facts were abundantly

with a full-bodied English First Gold hop for

conduct may have been careless. The novice

clear.

a spriteful, yet shameless, flavor, not likely

brewers should have been aware of prob-

to be forgotten.” The judge explained: “It was

able objection from Anheuser-Busch. But the

By any objective measurement, the king of

a dark beer.” A defense witness testified that

infringement was brief and geographically

American beers is Budweiser, a mild malt

no one who would drink Budweiser “would

limited, and defendants’ conduct was not so

produced since 1876 by Anheuser-Busch

dare think of drinking a micro beer, and the

egregious as to require them to pay Goliath’s

at breweries around the world. Between

people who drink micro beers wouldn’t dare

attorneys’ fees.

1996 and 2002, during the pendency of this

think of drinking a Budweiser.” That testi-

lawsuit, the makers of Bud, Bud Light, Bud

mony had the bell-like ring of truth.

Dry and Bud Ice racked up more than $40

It remains only to be said that a panel of the U.S. Circuit Court for the 1st Circuit last Au-

billion in sales. The company spends $250

The hopeful brewers of Billy Budd produced

gust affirmed the District Court. Its unsigned

million a year in letting the world know that

only 25 kegs. They sold five of these to bars in

affirmation, now on appeal, was so abomi-

“This Bud’s for You.” A Bud blimp floats over

Franconia, Bretton Woods and Manchester.

nably written that none of the three judges

the Super Bowl. A Bud team races for the

Gross sales: $385. Net profit: zero. None of

would take public blame for its composition.

Winston Cup.

these dispiriting facts seemed to mollify the

That, I can understand.

giant. Big Bud had met a test for infringeThe “Bud” trademark has become a hugely

ment laid down in 1961: That is, the trade-

(Letters to Mr. Kilpatrick should be sent by

valuable property, and its guardian lawyers

marks for Bud and Billy Budd were similar;

e-mail to kilpatjj@aol.com.)

mean to keep it that way. They did not seri-

the brews were vended to the same potential

ously object when a Cleveland florist appro-

customers in the same marketplace, and

COPYRIGHT 2005 UNIVERSAL PRESS SYN-

priated “This Bud’s for You” in its advertising.

a survey comissioned by Anheuser-Busch

DICATE

They turned their eyes from “Budd Van Lines”

obediently produced evidence of consumer

This feature may not be reproduced or dis-

and “Bud Brothers Smoke Supplies.”

confusion.

tributed electronically, in print or otherwise without the written permission of uclick and

But at some point Bud’s lawyers learned that

Taken at several New Hampshire malls, the

three bars in New Hampshire were selling

survey found that 27 percent of the respon-

— egad, sir! Aargh! They were selling “Billy

dents exhibited some confusion: 11 percent

Budd ale”!

believed Budweiser produced the beer, 13 percent believed Budweiser was affiliated

PAGE 1

Universal Press Syndicate.

THIS BUDD'S FOR THE LAWYERS  

They turned their eyes from Budd Van Lines and Bud Brothers Smoke Supplies. The makers of Bud, Bud Light, Bud Dry and Bud Ice racked up more...

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