In 2011, craft brewing company Saint Louis Brewery (SLB) filed an application to register its trademark, SCHLAFLY, for use in connection with “beer, ale and lager; beer, ale and porter; beer, ale, lager, stout and porter; beers; black beer; brewed malt-based alcoholic beverage in the nature of a beer; coffee-flavored beer.” The SCHLAFLY trademark was based on the last name of one of SLB’s co-founders, Thomas Schlafly, and since SLB began selling beer in 1991, SLB has purportedly offered 60 types of SCHLAFLY beer, with sales of over 75 million units between 2009 and 2014. SLB had owned two prior registrations for designs including the SCHLAFLY mark, dating back to 1993 and 2004, respectively. See U.S. Reg. Nos. 1,769,049 and 2,857,942.

But some of Mr. Schlafly’s relatives, including his now-deceased aunt, activist Phyllis Schlafly and Dr. Bruce Schlafly, a physician (the Opposers), took issue with use of the family name in connection with alcoholic beverages, and opposed SLB’s application in 2012, arguing that the mark is primarily merely a surname, and thus unregistrable. The Trademark Trial and Appeal Board (Board) ultimately dismissed the opposition and denied the Opposers’ request for reconsideration, in light of significant evidence that the SCHLAFLY mark had acquired distinctiveness.