The U.S. Court of Appeals for the Federal Circuit ruled Monday that the brewery co-founded by Schlafly’s nephew, Thomas Schlafly, may go forward with its trademark application. Phyllis Schlafly’s son Bruce opposed the registration, as did Phyllis Schlafly before her death in 2016. Phyllis’ son Andrew argued on their behalf to the Federal Circuit that surnames are not eligible for federal trademark protection.
That’s only partly true, Judge Pauline Newman wrote for a unanimous panel Monday in Schlafly v. The St. Louis Brewery.
“Words that are primarily merely a surname can be registered trademarks if they have acquired secondary meaning in trademark use,” she wrote.
The St. Louis Brewery sold some 56 million bottles and 18 million draft servings of Schlafly beer from 2009 to 2014, and the beer has been mentioned in USA Today, The Washington Post and The Wall Street Journal. That supports a finding that the Schlafly mark has acquired distinctiveness as beer, Newman concluded.
Judges Haldane Mayer and Kara Stoll concurred.
Phyllis Schlafly was the founder and CEO of the Eagle Forum and an outspoken critic of abortion and the Equal Rights Amendment. She and her sons argued that alcohol is inconsistent with the conservative values she espoused for more than 60 years. Further, Bruce Schlafly is a physician, and he argued that beer and its association with alcoholism and drunken driving creates a negative connotation for his medical practice.
Thomas Schlafly is related by marriage—Phyllis married his uncle nearly 70 years ago. Thomas is now a prominent St. Louis businessman and senior counsel at AmLaw 200 firm, Thompson Coburn.
Thomas co-founded the brewery in 1991, which has produced more than 70 beer varieties bearing the Schlafly mark. As the brewery expanded and the mark gained fame the brewery decided it was time to register the mark with the PTO.
Mark Sowers of the The Sowers Law Firm had the winning appellate argument for the brewery.
In addition to the surname argument, Phyllis Schlafly and her children argued that the Schlafly beer mark violated their First and Fifth Amendment rights. But, wrote Newman, “the opposers do not adequately explain how registration improperly impinges on their First Amendment rights. The Fifth Amendment claim likewise fails, as trademark registration is not a taking for government use.”