Trademarks 101: Don’t Clown Around When Choosing a Name

By Ross Dannenberg


With the explosive growth of the microbrewery industry, it’s increasingly difficult to choose a good name for your new beer (or even your brewery).  According to the Brewers Association for Small and Independent Craft Brewers, there were just 89 breweries in the United States in 1978 (the lowest point in history, ignoring prohibition), but that grew significantly to 6,372 in 2017, of which 6,266 were either craft breweries, microbreweries, or brewpubs.  As result, you’re not just competing with other breweries for customers, shelf-space, and those coveted festival awards, but for good names as well.

When choosing a name for your beer or brewery, it’s important to pick a name that is both marketable and protectable.  Regarding marketability, we’ll leave that to you and your marketing team.  After all, I’m just a lawyer.  Regarding protectability, however, that’s what I’m here for.  Protectability is measured both based on the inherent strength of that name you choose, as well as making sure no one else has already chosen that or a similar name. 

The inherent strength of a particular trademark is said to fall along a spectrum of distinctiveness, with generic marks having no distinctiveness and fanciful marks being the most distinctive.  Generic marks are words used to indicate the goods or services on which they are used (e.g., “Beer” for beer).  You can never trademark generic marks.  Next on the spectrum are descriptive marks, which are marks that describe in some way the goods or services on which they are used (e.g., “malt beverage” for beer).  Descriptive marks are not inherently distinctive under trademark law, and you must therefore accumulate “secondary meaning,” an acquired distinctiveness based on public association of the mark with the producer of the goods or services, before you can get exclusive rights in a descriptive mark.  Accumulating secondary meaning typically takes about 5 years and requires a showing that you have used the mark during that time without dispute from others, among other requirements.  Descriptive marks should be used as a last resort. 

Suggestive marks – those that suggest something about the product – are the first category of marks that have “inherent distinctiveness” and can be registered in the United States Patent & Trademark Office (USPTO) assuming there is no likelihood of confusion with any other existing marks.  Suggestive marks invoke some imagination by consumers because they do not directly describe a product or its features. "NSFW" for beer is an example of a suggestive mark that is inherently distinctive, and registered by Atlas Brew Works in the USPTO.

Arbitrary marks derive from familiar common words. The word, however, does not indicate or suggest what the product is, how it is made or what it does, and therefore arbitrary marks have more distinctiveness than suggestive marks. "Apple" for computers is an example of an arbitrary mark.

Fanciful marks possess the most inherent distinctiveness and therefore usually afford the most legal protection. Because fanciful marks are unique and have no other meaning, their definition cannot be found in an ordinary dictionary. "Exxon" for gasoline is an example of a fanciful mark.  In general, fanciful mark owners possess the greatest right to exclude others from using similar marks on a wide scope of related and less related products.

In addition to choosing a name that is inherently distinctive, it is also important to choose a name that is not likely to be confused with anyone else’s name.  Under US trademark law, a trademark owner has the right to exclude anyone else using a mark where there is a “likelihood of confusion” by intended consumers with the trademark owner’s mark.  Courts and the USPTO use a variety of factors when assessing likelihood of confusion, but one of the most prevalent is whether the trademarked goods and services and the alleged infringing goods and services are within the same “channels of trade.”  While reasonable minds may differ regarding what delineates one channel of trade from another, the USPTO often takes the position that all alcohol is within the same channel of trade such that someone owning a trademark for ACME for Beer could enforce its rights against someone using ACME for spirits, and vice versa. 

In view of the expansive position the USPTO takes, it’s important to consult with a trademark attorney and search existing marks before adopting one yourself.  That search should include registered trademarks as well as unregistered trademarks, because a senior user of an unregistered mark could still enforce its rights against you if you adopt a confusingly similar mark.  In addition to the USPTO, check online sources such as Untapped, Beer Advocate, and Google.  Check and see if anyone is using your desired mark for anything relating to alcohol and, if so, consider adopting a different mark.

 Label excerpt from  Undead Party Crasher

Label excerpt from Undead Party Crasher

Think this can’t happen to you?  Think again.  Clown Shoes Beer of Ipswich, Massachusetts, found itself in a bit of hot water when it launched its Vampire Slayer smoked imperial stout without first clearing the name.  After getting sued by the owners of the trademark VAMPIRE for beer, Clown Shoes ultimately changed the name of the beer to Undead Party Crasher (see for more history).  While this author agrees with Clown Shoes that a cease and desist letter would have been a more appropriate opening salvo rather than filing a lawsuit, this situation could have easily been avoided in the first place had Clown Shoes consulted a trademark attorney prior to adopting the name.  However, it doesn’t appear there is any love lost between Clown Shoes and trademark attorneys, so one must wonder if history is doomed to repeat itself.

Clown Shoes, on its web site, lists a litany of reasons why they don’t believe their Vampire Slayer beer infringes the registered VAMPIRE mark.  However, when choosing a new name your primary goal shouldn’t be to prove that you don’t infringe someone else’s mark after they say that you do.  Your primary goal should be to choose a name where you don’t have to even argue about in the first place.  Remember, even if you’re right and you don’t infringe, it still costs lots of money to defend your rights and prove your innocence after a trademark owner asserts rights against you.  I promise you that the cost at the outset to properly search and get clearance to use a strong, protectable mark is much less than the cost of being forced to change your name as a result of a legal dispute. 

Choosing a name for your beer is definitely one of those situations where an ounce of prevention is worth a pound (or three) of cure, so choose wisely!

Ross Dannenberg is an intellectual property attorney with the Washington, DC law firm Banner & Witcoff.  In addition to serving as outside intellectual property counsel for the DC Brewers’ Guild, Banner & Witcoff has also assisted local area breweries and distilleries with intellectual property clearance, protection, and enforcement.  Ross can be reached at

Patriarch of Brewers: The Enduring Reputation of Christian Heurich

By Kimberly Bender, Executive Director, Heurich House Museum


“Corporate culture” is a mainstay of business theory, taught in B-school programs and discussed often by Harvard Business Review, Forbes, and Entrepreneur magazine. The term feels like a modern invention, a buzzword used to describe the “the beliefs and behaviors that determine how a company's employees and management interact and handle outside business transactions.”(Investopedia) Google is often cited as having the best company culture, noting its dog-friendly work environment, flexible work schedule, and shared values.

Yet, as long as there have been corporations, there has been corporate culture. And “[f]or better and worse, culture and leadership are inextricably linked. Founders and influential leaders often set new cultures in motion and imprint values and assumptions that persist for decades. Over time an organization’s leaders can also shape culture, through both conscious and unconscious actions…” (HBR)

Patriarch of Brewers: The Enduring Reputation of Christian Heurich is a temporary exhibit at the Heurich House Museum that explores the company culture that served as the foundation of success for DC’s largest historic brewery. From 1873 to 1945, Christian Heurich ran the Chr. Heurich Brewing Co., and by the time he died at the age of 102, he was known in the city as a respectable and formidable businessman. His stature stemmed from strong personal principles that he integrated into all aspects of his life, including the culture of his company.

Heurich’s employees viewed him with affection and respect. He created a workplace culture that both valued and rewarded loyalty and hard work. Always leading by example, Heurich was known to work to the point of exhaustion numerous times in his early career. He formally recognized and celebrated employee service to the brewery and community and frequently hosted employee family social events. Heurich’s employees showed their admiration by returning the favor, hosting events celebrating his accomplishments as a successful brewer and respected employer.

Heurich also received accolades for the quality of his beer, and he personally received numerous awards for his service to the industry from various associations and trade shows. He was proud of the quality and purity of his beer, as he was trained as a brewer in the German tradition of Reinheitsgebot, or German Purity Laws. He continued to use these practices in America and even fought for higher government food safety standards.

Heurich’s reputation extended beyond the brewery, as he was also recognized as a generous private philanthropist. He helped fund civic improvements in his hometowns in Germany, engaged in various local civic associations, and served as an active board member of several charities in Washington, D.C. He gave most generously to institutions that reflected his interests of German heritage, history, music, and children, and was frequently recognized for his service to these institutions.

The exhibition presents the numerous honors and accolades Heurich received from his peers, employees, and the community, which acknowledged his values and cemented them as his personal and professional brand. Heurich’s reputation, a reflection of his character, was key to the success of his business, helping him establish a healthy brand, loyal workforce, and strong customer following that would keep his business operating successfully for over seventy-five years.

Visitors can view the exhibit, which was made possible through a loan from the Historical Society of Washington, DC, through September 2019 at the Heurich House Museum in Dupont Circle.

Beer Historians at Your Service

Hello, I'm Michael Stein and I like to brew beers that don't exist. Is that an existential crisis? No. It's just a fun way to draw people into history by using America's favorite beverage as a jumping off point.

 Lost Lagers 'Drink the Extinct!' event presented as part of the DC Beer Week 2017 series of educational programming.

Lost Lagers 'Drink the Extinct!' event presented as part of the DC Beer Week 2017 series of educational programming.

Did you know that brewing is one of the oldest industries in DC? Were you aware that before prohibition, the brewing industry was the District's largest private employer? If not, now you do!  DC's first brewer opened shop in Alexandria in the 1770s and the first commercial brewer of the federal city was the first brewer of the port city. Scottish immigrant Andrew Wales, DC's first commercial producer, sold beer to George Washington, amongst other historically significant people. Prior to prohibition, Anheuser Busch, Pabst, and Schlitz all had bottling plants in DC, long before the election of Franklin D. Roosevelt, the birth of the beer can, or the Washington Nationals.

Ever wondered how many breweries were in DC during Frederick Douglass' lifetime? Five.* There were five breweries in DC before the lion of Anacostia passed away on to glory. And what did the beer taste like produced during Douglass' life? Well, therein lies the rub.

The mission of LostLagers, the beverage research firm I run with Pete Jones, is to educate drinkers on what beer tasted like in past centuries. We’ve brewed many historical beers like molasses beer with Pen Druid of Sperryville, VA, pre-prohibition lager with DC Brau Brewing Company, and Lake Anne Brew House (of DC and Reston, respectively), and Polish porter with District Chophouse & Brewery. We collaborated with Bluejacket on a historic blended porter for the Smithsonian's American History After Hours event, Brewing up History. We’ve also brewed Wales' Strong Ale with Portner Brewpub, as well as 1895 Barleyweiss (with Union Craft Brewing Company of Baltimore) a Berliner-style Weissbier which was originally brewed without wheat, amongst others including our Heritage Lager Series with Lake Anne Brew House.

 Lost Lagers presenting alongside Bluejacket at the 'American History After Hours: Brewing Up History' event hosted by the Smithsonian Museum of American History

Lost Lagers presenting alongside Bluejacket at the 'American History After Hours: Brewing Up History' event hosted by the Smithsonian Museum of American History

But this exploration of beer history is not only for breweries! We love history, brewing, and working with people who have a passion for either. If you'd like to learn more about the beer historians in DC, sign up for a historic homebrew class at the Hill Center. Classes in April, June, September, and November, will demonstrate how to take colonial, industrial, and old recipes, and turn them into futuristic beer.

Lost Lagers is available for collaborations, consultations, to supply historical context, ideas, and information to modern breweries in and around the district. We love working with breweries and their ancillary services. We partner with large production breweries, small pubs, libraries, museums, historic sites, and various nonprofits. Please feel drop us at line at You can also sign up for our newsletter on our site, at the bottom of the page. Please reach out if you have questions or even if you’re just looking for a resource recommendation.

*There were five breweries in DC in 1895 according to Garrett Peck's Capital Beer: Albert Brewing Company (2431, 2445 F Street, NW), Banner Brewing Company (421 Tenth Street, NW), Christian Heurich Brewing Company (Block encompassing Water Street between Twenty-fifth and Twenty-sixth Streets, NW), Maurice Kernwein (124 N Street, NW), National Capital Brewing Company (D Street between 13th & 14th Streets, S.E.), Washington Brewery (Block encompassing Fourth and Fifth Streets, NE between E and F Streets, NE).

Digital Pest Control Lands in US this Spring

By Miranda Sherman

For most of us, smart technology is limited to the home and hearth. We turn off the lights, automate our Amazon deliveries and brew coffee with one touch technology. Although the technology itself isn’t new, the idea of automating pest control is still foreign to many. 

Yes, pest control. Getting a handle on unwanted rodents and other vermin, while not a glamorous topic, is an undeniable issue facing urban centers everywhere. And, the District is no less a target of scrutiny when it comes to the city's seemingly inherent rodent problems. As part of her #BackToBasicsDC campaign, Mayor Bowser has recently announced new tactics aimed at decreasing rodent populations in D.C. “Rats are an issue I take very seriously and my team is being innovative, proactive, and strategic in our approach,” said Mayor Bowser. “Like many cities across the country, Washington D.C. has seen an increase in the number of rodent reports over the past several years, but through better analytics, smart technology, and broader community outreach, we are meeting the challenge.” The idea of using smart technology to digitize pest control is still foreign to many of us, and with good reason. Yet, if vermin can be detected the instant it enters homes and businesses in the District, it's a game changer. 

 Mayor Bowser conducts a 'rat walk' as part of her #BackToBasicsDC campaign aimed in part at decreasing DC's rodent population.  (photo credit:

Mayor Bowser conducts a 'rat walk' as part of her #BackToBasicsDC campaign aimed in part at decreasing DC's rodent population.  (photo credit:

When the average DIYer thinks of digital pest control it’s easy to envision plug-n-play devices that emit some sort of high frequency soundwaves that shun vermin. However, this year in the US, pest control as we know it takes a gigantic leap ahead with intelligent technology by Anticimex SMART.  This technology literally keeps an eye on that which we don’t want to see by constantly monitoring and instantly reacting. It prevents costly pest infestations in an environmentally-friendly way. It works by using advanced sensor technology (the eyes and ears) to detect rodent activity in cable runs, ceilings or voids, food or equipment stores or other areas that are only inspected with difficulty or infrequently. It’s ideal for use in food processing and manufacturing plants, as well as in and around apartment blocks, hospitals, schools, government properties and many other areas.

Whether it’s rodents on the interior or exterior, Anticimex SMART devices use powerful heat and motion sensors to lure, catch, and humanely kill rats and mice without the use of toxic baits. Each type of device is engineered to prevent rodent infestations with intelligent, around the clock monitoring and control, for many at the source of entry—sewer pipes leading to and from buildings. All devices speak to each other in real time (via 3G connectivity) sending critical information on rodent activity and catches to a central data hub and back to your pest control provider.

ACX SMART Rodent sensor system_01.jpg

No longer is the ingenuity of technology (think Jetsons) too far off from futuristic imaginings. While we may still be a way off from piloting our own personal flying machines, techies across the globe are competing to develop products and services to help us live healthier lives. AI (artificial intelligence) to detect vermin the instant it breaches our living and working spaces is a great advancement towards helping us live healthier lives. 

To learn more about digital pest control or receive insider tips on pests in the DC metro area, visit and subscribe to their monthly newsletter!

Beer & Metal Collide

By Michael Becker

Inside any D.C. brewery you will find speakers and more often than not there will be metal music on those speakers: Heavy metal. Doom metal. Thrash metal. Rap metal. Ambient metal. Stoner metal.

“Brewing is very much a blue-collar job,” said Will Cook, Brewer Emeritus at Atlas Brew Works and Director of Heavy Metal Operations. “There may not be a lot of people who want to get into this business listening to Adele or Maroon 5.”

How did this happen? What’s a Director of Heavy Metal Operations? What’s so wrong with Adele, anyhow?

Turns out, the men and women who make your beer are unapologetic metal heads. Not all, of course. Some like rap music—the real stuff; not the metal-rap derivative. Even more are into jam bands, like Phish or the Grateful Dead. However a growing number of D.C. brewers are brewing great beer and digging on metal while they do it.

“I don’t know if it’s the chicken or the egg,” said Sam Puffenbarger, Brewer with DC Brau Brewing Company. “People who liked beer and liked metal got into brewing? Or people who got into brewing developed a taste for metal?”

It’s likely a little of both. Cook, who has brewed beer for Port City Brewing, Fair Winds Brewing Company and Atlas Brew Works, arrived at each spot with a fully developed appreciation for metal. On brew days, so long as he’s in the building, it’s eight hours of metal on the speakers. He said every single brewer who works at Atlas likes at least some aspect of metal. Puffenbarger, of DC Brau, is similar although he will defer to his colleagues for a few hours before switching to Black Sabbath, Manowar, or Bong Ripper.

Lately in D.C., metal has not been confined to the brewery speakers. The music inspires imagery on local cans as with metal-themed beers, like DC Brau’s one-off collaboration with Darkest Hour called Savor the Swill (a play on their 2011 song “Savor the Kill”).

  Photo credit: DC Brau Brewing Company

Photo credit: DC Brau Brewing Company

That collaboration, in a way, had been in the works for years, as DC Brau’s Mari Rodela went to the same Northern Virginia high school as several members of Darkest Hour. Rodela and her husband, DC Brau President and Head Brewer Jeff Hancock, re-engaged with members of the band in recent years, asking them what they liked to drink both on-stage and backstage. A lot of bands don’t like hoppy IPAs, Hancock said, adding that most bands prefer light styles like pilsners for their drinkability. Eventually, Hancock suggested that DC Brau and Darkest Hour collaborate on a German-Style Helles. “We joke with them that it has Hell in the name,” Hancock said.

DC Brau released Savor the Swill—brewed with Augustiner Lager yeast and Czech Republic 2 row Pilsner malt—last spring and distributed it to select bars near the Black Cat, where Darkest Hour played a concert.

Heavy-metal concerts organized around big brewer events, like the Craft Brewers Conference, are a popular addition to the scene. DC Brau hosted an all-day lineup of metal bands for its anniversary party in 2016. Atlas Brew Works has been hosting weekly—and sometimes twice-weekly—metal concerts at the brewery. Recently, Atlas has hosted Defeated Sanity, Outer Heaven, Tomb Warden, Genocide Pact, Seven)suns, Circuitry, and Taphos Nomos—and that’s just since late October.

 Genocide Pact play Atlas, Nov 2017                                         Photo credit: Atlas Brew Works

Genocide Pact play Atlas, Nov 2017                                        Photo credit: Atlas Brew Works

District Brewers are not unique in their love for metal. 3 Floyds Brewing Company of Munster, Indiana is known as the most metal brewery in the country, both for metal imagery it uses and the band collaborations it pursues. At Minnesota’s Surly Brewing Company, its longtime - now ex--brewer is in a metal band called Powermad. Yet, District brewers are notable for their passion—both for the beer they brew, and for the music they listen to. “If you’re a metalhead, you’re passionate about metal,” said Cook, the Director of Heavy Metal Operations. “There are not a lot of casual metalheads.”

Oh, and about that creative Director’s title? The tongue-in-cheek honorific was bestowed upon Cook while he was brewing at Fair Winds, for his propensity to blast metal and arrange concerts at the brewery. The moniker followed him to Atlas, where he overlapped briefly with Puffenbarger and became the Assistant Director of Heavy Metal Operations. When Puffenbarger left for DC Brau, the tongue-in-cheek title was all his.

“I don’t know any hip-hop breweries,” Cook said. “I don’t know any country breweries, by and large. But there are definitely some heavy metal breweries.”

The Public Option

By Megan Devlin

 At 5 o’clock on a Sunday evening The Public Option is still waking up. Two baristas from a neighboring cafe share pints after a busy shift. Another couple strolls in and orders two cream ales, the most popular on the menu, according to The Public Option founder Bill Perry.

Perry opened The Public Option with his wife, Cathy Huben, in October 2015. To celebrate its second anniversary, the couple hosted a Halloween bash on October 28, with nearly 100 people flowing and out of the little Langdon Park brewpub nestled in the northeastern edge of D.C. Tavern regular and Heurich House advisory board member, Aaron DeNu, loaned his creative production skills for a second year to build projections of ghostly holograms glowing green and purples hues through The Public Option’s window sills and on its tavern walls. DeNu said The Public Option’s historic location in Langdon Park, a site of three major U.S. wars, as well as its proximity to the church that first documented the crazy acts of the 14-year-old ‘Exorcist’ boy, make the tavern all-the-more fitting a venue for a haunted Halloween party.

Gearing up for the colder season, Perry is excited for the early December release of a ‘winter special’ dark red ale made by Tony Wood, The Public Option’s Head Brewer. Wood, who worked previously at Tired Hands Brewing and DC Brau Brewing Company, has helped The Public Option hone its beer hallmark as being clean and clear with good body.


The Public Option’s 1bbl brewhouse is out back while eleven fermenters line the basement. Eight of these are always full of The Public Option batches and an occasional one or two aging recipes of other homebrewers and industry friends. The absence of temperature controlled fermenters keeps The Public Option beers exclusively ales, though Perry hopes future collaborations with other breweries might allow the tavern to feature new styles on tap.

Despite size limitations of the one-barrel system, Perry said that limiting hours of operation to four evenings per week and focusing on in-house production only give The Public Option flexibility to experiment with its beers. “We are free to modify batch to batch,” Perry said. “In the two years we’ve been open, there isn’t anything I haven’t changed.” This is demonstrated by his encouragement of tavern patrons to taste all eight offerings on tap. Perry always offers samples to new customers and regulars alike, namely because The Public Option consistently experiments with recipes, even for flagship beers.

Perry, previously a photo librarian for National Geographic, has been homebrewing since the early 1990’s. D.C. born and raised, Perry said the limited selection of craft beer options in the District at that time kept him brewing at home rather than patronizing the pubs. While never having been an official member of any homebrew clubs, he often acts as advisor to fellow homebrewers and passionate beer lovers who aspire to open breweries and taverns.

“A lot of people come into our space and think, gee, I could do that,” said Huben when describing the conception of The Public Option when she and Perry bought the building in 2009. She never imagined The Public Option would become what it has today, let alone the change in course it would have on her life. “I wanted to travel,” Huben regaled, “But I don’t regret any of it. Such a wide diversity of people come through our doors, along with neighbors who we never would have met otherwise. As you get older the world gets more insular, but just open a bar…” Perry quickly chimed in, “She’s a great teammate.”

MATAL v. TAM, Greater Freedom for Trademarks and Beer Labels


            On June 19, 2017, the Supreme Court of the United States issued a landmark trademark ruling in the case of Matal v. Tam.  The case dealt with whether or not the US Patent & Trademark Office (PTO), could deny a trademark registration on the basis that the mark in question was deemed derogatory or insulting. While the case has implications for First Amendment jurisprudence generally, it is of specific importance to the craft beer community.

 Image credit:

Image credit:

             Matal v. Tam, involved an all-Asian rock brand that wanted to register a trademark for their band name, “The Slants.” They were denied the registration by the PTO, on the basis that the mark “the Slants,” violated the disparagement clause of the Lanham (Trademark) Act, 15 U. S. C. §1052(a), as the word slants is a commonly used racial epithet for people of East Asian ancestry. The clause states, in relevant part, that:

                  No trademark...shall be refused...on account of its nature unless it, consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

Following the initial denial, Simon Tam appealed the ruling of the PTO agent, and the case eventually found its way up to the Supreme Court. Upon review, the Court reached two relevant conclusions.

             First, the Court ruled that a trademark registration is not government speech, and therefore First Amendment free speech protections still extend to companies or people who apply for registration.  Specifically, the majority explained that, “[i]f private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents.”

             Second, the Court explained that even if a trademark is considered commercial speech, which generally has a lower level of protection than political or artistic expression, the government still could not deny a trademark for The Slants on the basis that the name is considered derogatory because that would constitute viewpoint discrimination. The Court noted that, “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”  For these and other reasons, the Court struck down the disparagement clause as unconstitutional.

             This decision has immediate implications for those who seek to register a trademark that would have, in the past, been denied because they were deemed derogatory under Section 2(a). For example, in March 2014, the PTO rejected under section 2(a) an application for the mark “Functioning Retard,” which the applicant had sought to register in class 025 for clothing. The applicant refiled for the mark in view of the Tam case.  Now that the Supreme Court has struck down the disparagement clause, the “Functioning Retard” mark will likely proceed to registration. 

             One unanswered question from the Tam case is the scope of the 2(a) language that has been struck down. Following Matal v. Tam, marks that are disparaging can now be registered. However, article 2(a) also prohibits the registration of marks that are ‘immoral” or “scandalous.” There is a pending case before the Federal Circuit,In re Brunetti,that will determine the constitutionality of the “scandalous” clause.  Given the broad scope of how the Supreme Court discussed free speech issues in Tam, particularly its comment that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’,” it is likely that the Federal Circuit will either strike down or severely limit registration denials on the basis that the mark is scandalous.

 Image credit:

Image credit:

In the past, registrations for beer names and logos that were vulgar or offensive were refused under this provision.  For example, Swedish import/export company Berax was denied a registration for the beer mark “The Real Shit.”  Engine 15 Brewing Company was denied registration for its beer mark, “Nut Sack Double Brown Ale (though they later won their appeal and the mark registered).  Wauldron Corporation was denied registration of their “Bad Frog Beer” logo depicting a frog with its middle finger extended.  If the Federal Circuit extends the Tam decision and rules that the scandalous and immoral provisions are also unconstitutional, then these and other vulgar or offensive marks would likely be approved for trademark registration.

             Beyond its impact on trademark registration, the Tam decision (and potentially the In re Brunetti decision) could have an impact on regulations governing label approval by the Alcohol and Tobacco Tax and Trade Bureau (TTB). The decision states that,

Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine.  For if the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way.

The Court is implying here that free speech protections would also extend to content that has to be registered under other systems of government regulation. Under TTB regulations, any malt beverages sold in interstate commerce[KR6] [KR7]  must bear a label that has been registered with, and received prior approval from, the agency (27 C.F.R. § 7.20). In addition to the many other requirements and restrictions for beer labels, applicants are prohibited from using “any statement, design, device, or representation which is obscene or indecent” (27 C.F.R. § 7.29).  While the language does not track exactly with the Lanham Act prohibitions on marks that disparage, or are immoral or scandalous, there is a likelihood any free speech protections that extend to commercial speech which is “immoral...scandalous” would also encompass that speech which is “obscene or indecent.”  Through the incorporation process of the 14th amendment, the free speech protections outlined in Tam (and any subsequent federal decisions that result from the case), would most likely also extend to the state level.  So, for example, Flying Dog’s famous decade long legal battle against the Michigan Alcohol Control Board regarding their “Raging Bitch” beer would nowadays be impacted by the expanded free speech standard outlined in Tam.

             All this, of course, doesn't mean that just because a brewery may now have greater freedom to use disparaging or insulting/scandalous language in its branding, it should necessarily use that freedom. There is a growing sentiment in the craft beer community that breweries who use disparaging language should be called out and admonished for doing so. Recall that under new Brewers Association standards, any breweries who use what the BA considers to be derogatory or vulgar language for a beer name, will no longer be allowed to reference any BA-related awards on the advertising or labeling for that beer.  With this added freedom for breweries, exercising good judgment will be more important than ever.

             Because the scope of the Tam decision is somewhat unclear and the In re Brunetti case is still ongoing, it would be advisable for any brewery using a beer name that might be considered derogatory, scandalous, immoral, obscene, or indecent to contact their trademark attorney for advice particular to their case. 

About the authors:  Gregory Parnas is a contributing writer for and a local brewery attorney. Brian Kaider is the principle of KaiderLaw, an intellectual property law firm with extensive experience in the craft beverage industry.  Brian can be reached at (240) 308-8032 or

Brewing in Solidarity

by April Anderson

The DC Brewers Guild proudly presents the 9th Annual DC Beer Week, taking place August 20th - 27th 2017. The eight day festival celebrates the Capital region's craft beer community… and throughout the week, local breweries, restaurants, bars & community partners bring the area's best craft beer tastings, educational seminars, and events to the people!

Since 2012 breweries from across the DMV region have joined together to celebrate DC Beer Week with a collaborative brew they call Solidarity Beer, a style which changes from year to year. This beer is exclusively featured during DC Beer Week, creating a celebration of community, and lending to its limited availability. That said, in years past “Solidarity” has only been available on draft. However, that is all about to change, as this year for the first time ever it will be packaged and available for purchase!

 As part of the DC Beer Week tradition… D.C., Maryland, and Virginia craft breweries come together to collaborate on the Solidarity Brew. Each year a different brewery is awarded the opportunity to play host and craft the “Solidarity” beer at their respective facility. Recipe construction of course is a collective effort, lending the opportunity for input from each of the regions talented brewers. This year’s Solidarity Beer style is a Brett IPA, a beer reflective of the unity and vibrant nature within the local community.

Hosted this year by Right Proper Brewing Company, the brew day for “Solidarity” took place Thursday, July 20th at the Brookland Production House on Girard St. The breweries in attendance were Atlas Brew Works,Bluejacket, DC Brau, District ChopHouse,Denizens Brewing Company, Gordon Biersch – Downtown, Gordon Biersch –Navy Yard, Hellbender Brewing Company,The Public Option, 3 Stars Brewing Company, and Port City. Aside from the humidity and sweltering heat (not to mention the brew kettle) the atmosphere was lively and full of industry humor, as the brewers took the opportunity to catch up with each other and talk “shop”.

Those who donated time, materials, and ingredients to help make this beer happen include United Bottles & Packaging, Blue Label Digital Printing,Andy Sides Designs, YCH HOPS, and Country Malt Group. And just in case that wasn’t enough… Holly Haliniewski, the Operations Manager for theD.C. Brewers Guild, facilitated a media segment with The World of Beer – Drink It interns to document the day and interview a few of the brewers. Nathan Zeender, Head Brewer of Right Proper Brookland Production House & Tasting Room remarked “I was glad everyone was on board with a beer fermented with our house mixed culture that would play to the strengths of our brewery by offering something funky, unfiltered, and juicy for the August heat. The fact that it is the first bottled beer we've ever released is meaningful, and more so that it happened with the help of so many friends and partners.”

Additional comments were made in reference to the significance behind the brew and the meaning for which it stands. Barrett Lauer, Head Brewer for The District ChopHouse & Brewery, stated, “"Solidarity" is a celebration of quality beer. It embodies the idea that not only local breweries, but local bars, businesses, retailers, distributors, artists, and suppliers, are all in this together. Working together we are all much stronger than when we work alone. Beer culture exemplifies this and "Solidarity" celebrates our healthy and thriving culture. There is a lot of time, labor, and love in beer. At the end of it all it is awesome to sit back, enjoy it, and celebrate it together.”

As such, “collaboration” is a term which many of us in the beer industry are quite familiar with… whether it be the formulation, participation, or (my personal favorite) consumption of. We are joined together by the notion of creativity, innovation, and passion to craft such a brew. Coming at a time where we may find ourselves divided through mergers, buy-outs, and difference in opinions… it is important to remember community and a genuine love for the craft.

Lastly, “Solidarity” stands for harmony, unity, and fellowship… reason’s for which the beer community has thrived amongst the world. That said, if you get the chance to participate in the week’s festivities throughout the DMV region, be sure to take a moment to reflect on what is in your pint glass… and its ability to connect us! 

- April Anderson

History's Mysteries: First Female Brewer in D.C.?

By Michael Stein, Educator, Author, Historian

Who was the first recorded female brewer in the District of Columbia? A tricky question to answer.

Who was the first female brewer in Washington, D.C., after prohibition? This one proves even trickier.

According to Garret Peck's Capital Beer: A Heady History of Brewing in Washington, D.C., the first female brewer in D.C. history appears one year after the end of the Civil War. Peck writes that Catherine Baumann is listed "as the first woman brewer in Washington" in Boyd's Directory. He goes on to write "whether she actually brewed is questionable, given that she soon put the brewery up for auction." Baumann had inherited the brewery from her late husband, as she was the executor of his will.

Over 150 years ago, D.C. had its first recorded brewster. Whether Catherine Baumann brewed or not, she was listed as one. We know thanks to the research of Daniel Tana, Program Manager at the Center for Design & Cultural Heritage, that the 1860s was a time when even the spelling of the Baumann name varied.

According to Tana's The Last Call: Preserving Washington's Lost Historic Breweries, Paul Baumann was also written as "Paul Bowman" in the years after his brewery was first listed in 1858. Baumann's brewery stood at 21 East Capitol Street, near today's 1st St. NE just blocks from the Capitol building.

Perhaps then it is no surprise that his wife, Catherine, as both Tana and Peck refer to her, is listed as "Katharina" in the 1867 Boyd's Directory. By 1860 Baumann had another brewery at 504 D Street SE. That location is now a modern residence between 5th and 6th Streets SE, about a block from Hank's Oyster Bar Capitol Hill, 633 Pennsylvania Ave. SE, where you can enjoy beers from Guild members Atlas Brew Works, DC Brau, and Right Proper.

So it's been a century and a half since D.C.'s first recorded female brewer, but what of D.C.'s first brewster post-prohibition?

I reached out to some of the most knowledgeable, historically-interested brewers in the area. My request was simple, who was the first female brewer in D.C. since 1933?

Barret Lauer, Head Brewer of the District Chophouse, replied, "So was Kristi technically a D.C. Head Brewer since they are brewing in VA? I think we would have to give that honor to Megan Parisi?"

Gordon Biersch Navy Yard Head Brewer Travis Tedrow followed up with "Barrett you are correct, no actual Cap[itol] City brewing in D.C. proper when Kristi took over." So this ruled out beloved brewster Kristi Mathews Griner on the technicality that when she was Head Brewer for Capitol City her work took place in Virginia. So was the title holder Megan Parisi, Bluejacket's first brewer?

Mad Fox Brewing Company CEO, Bill Madden, set the record straight, though he could not remember the last name of the mystery woman, and simply remembered her as Daria. "I last saw her at the Craft Brewers Conference in Boston in 1996 I believe. Yes, she did brew and everything else we did on that 10 HL system at the original Cap City."

Madden was unable to remember her name but thanks to an earlier D.C. brewster in Parisi, we were able to identify D.C.'s first female brewer since prohibition:

"Through a bit of sleuthing I managed to get her name, Darrah Bryans. I asked Megan Parisi at Sam Adams about her, she contacted Jodi Andrews who was brewing at Boston Beer Works in the mid 90's time-frame. Darrah Bryans went from Capitol City in 1995 to Doemans Academy in Germany to Brew Moon on Harvard Square. That is as far as I can go on finding more about her, not much written on the individual brewers back then and she may have gotten married and changed her name."

And so it is solved: Darrah Bryans was D.C.'s first female brewer since prohibition. Catherine, or Katharina, Baumann, was D.C.'s first documented female brewer pre-prohibition. At least until an enterprising beer historian turns up another document from the Civil War era!

 Darrah Bryans (photo credit

Darrah Bryans (photo credit

CFATS & the Brewing Industry: Don’t Let Your Chemicals Be a Terrorist’s Next Weapon

By Andrea Fellows, Department of Homeland Security

Did you know that the chemicals you use every day might be regulated under a Department of Homeland Security anti-terrorism program?  While their benign uses may be as cleaners, disinfectants, or refrigerants, in the hands of a terrorist they could be cause an explosion, create a cloud of toxic gas, or be stolen and used to cause mass casualties offsite.     

The Department of Homeland Security has a list of 322 chemicals, known as Appendix A, that trigger reporting requirements. Anyone who has these chemicals at DHS’s screening threshold quantity (STQ) must complete a Top-Screen assessment, which DHS uses to determine whether a facility is at high-risk of terrorist attack.  High-risk facilities develop security plan tailored to their chemicals and business processes.

Currently regulated facilities within the brewing industry have mainly reported chemicals related to refrigeration, pasteurization, cleaning, sanitizing, and disinfecting.




Ammonia (anhydrous)

Release- Toxic


Bromine Chloride

Theft-Weapon of Mass Effect (WME)

Sanitizer/ Disinfectant


Release-Toxic; Theft-WME


Chlorine Dioxide

Release-Toxic; Sabotage/ Contamination

Sanitizer/ Disinfectant

Ethylene Diamine



Hydrogen Chloride (anhydrous)

Release-Toxic; Theft-WME

Sanitizer/ Disinfectant

What if a facility does not report?

While the Department’s strong inclination is to work with facilities to assist with compliance, DHS has the authority to fine a facility that is not complying with the regulation up to $33,333 a day per violation. 

Interested in learning more?

Email, or visit for more information about the CFATS program and chemical security. The list of chemicals of interest is available at:

MEGABREW: The AB InBev and MillerCoors merger and what D.C. breweries can do about it

By: Gregory Parnas

Almost a year and a half ago, on November 11, 2015, AB InBev (ABI) announced that it had reached a $107 billion deal to acquire its chief global rival SAB-Miller. This announcement touched off a lot of very justifiable anxiety over what the merger would mean for the craft brewing community, and more importantly to the beer distribution networks that are dominated by AB and Miller. The announcement also began a nine-month long review process by the Department of Justice (DOJ) Antitrust Division. That process led to a challenge from the DOJ of the merger, with a subsequent D.C. federal court complaint and (due to a somewhat archaic legal procedure) simultaneous consent decree, or settlement agreement, being filed between the U.S. government and the defendants, ABI and SABMiller.

The proposed consent decree, issued on July 20, 2016, set out certain terms of approval for the AB-Miller merger and was subject to a public notice and comment period. During that comment period a number of stakeholders, among them, the Brewers Association, the State of North Carolina, two national beer wholesalers associations, the Virginia Beer Wholesalers Association, Ninkasi, Yeungling, the Teamsters Union and a number of other parties, wrote in to address various aspects of the proposed decree and explain why the merger may harm the American beer industry and more specifically beer consumers. In any antitrust review, the key question is not whether a particular merger will harm competitors or industry members, but whether consumers in the “relevant” market will be harmed by the acquisition. On January 13, 2017, the DOJ issued their response to the public comments along with publishing said comments.

In their response, the DOJ essentially said, thank you very much for all your comments and concerns, but we believe the proposed consent order is just fine as it is. Specifically, the DOJ cited relevant case law which explains that, “A ‘proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is within the reaches of the public interest.”

The proposed consent decree has now cleared most of the relevant procedural hurdles and is likely to be shortly finalized by order of the D.C. District Court. Here is where the members of the DC Brewers’ Guild come in. Among other provisions, the consent decree provides for the appointment of a Monitoring Trustee whose job it is to oversee the conduct of ABI during the ten-year period of the Court Order. That trustee’s name is William E. Berlin; he is a local D.C. attorney whose office is located at 1425 K Street NW. His email address is and his phone number 202-370-9582. Bill Berlin’s job over the next decade is to field any and all complaints from beer industry members regarding the conduct of ABI, particularly as it concerns violations of the consent decree with the DOJ. While Bill is given authority to investigate such complaints, and issue recommendations to the Antitrust Division, it is ultimately in the sole discretion of the DOJ to accept, modify, or reject the Trustee’s recommendations for action against ABI. According to Bob Pease, President of the Brewers Association, keeping Mega Brew in check will require the vigilant eye of the brewing community.  DC Brewers’ Guild members should make note if they hear of any of the following prohibited practices in the consent decree:

(1)    ABI acquiring more than 50% ownership of equity or assets in a distributor, if acquiring that distributor would mean that more than 10% of ABI’s beer in the geographic territory would be sold through distributors that they own. Unfortunately, ABI is still permitted by the plain wording of the decree to acquire more than 50% of the voting shares in a distributor business, or anything up to 49% of the ownership shares, without any violation of the Court Order.

(2)    ABI cannot condition its relationship with an Independent Distributor (defined as any distributor where ABI doesn’t have a 50% plus ownership stake), or provide any reward or penalty to the Distributor, based upon its sale of third party brewers’ beer or the promotional/account services the Distributor provides to those independent brands. There are a number of specific examples provided in the consent decree, which can be found here. However, ABI is permitted to condition its relationship with a Distributor, and provide all sorts of rewards and penalties, based upon that Distributor’s efforts to promote and sell ABI brands, as long as such conduct doesn’t require or encourage the Distributor to provide less than best efforts for its independent brands. For example, if 40% of a distributor’s revenue in the previous year came from selling ABI products, the Consent Decree explicitly states that the Independent Distributor can be required to spend up to 40% of their promotional and incentives budget for the subsequent year on ABI products.

(3)     ABI cannot object to the placement of an Independent Distributor’s general manager based on that Distributor’s sale, retail placement, or promotion of a Third Party Brewer’s beer. How one would establish that this was the actual reason for ABI’s objection is not discussed in the Consent Decree.

(4)    If ABI exercises its right to intervene in the case of a change in the transfer of control, ownership, or equity from one Distributor to another Distributor, when ABI intervenes it cannot take into account the business that the Distributor has with a Third Party Brewery or the retail placement of that brewery’s beer.

(5)    ABI cannot request that an Independent Distributor provide them financial information regarding anything related to a Third Party Brewery, or require that an Independent Distributor provide them general financial data about the Distributor or ABI related information, if by doing so ABI would be able to ascertain any financial information regarding the Third Party Brewer.

If any DC Brewers’ Guild Brewery Members are harmed, or are likely to be harmed, by the conduct of ABI regarding one of their distribution partners, or otherwise hears through the beer community of any inappropriate conduct that would fall within the scope of the consent decree with the DOJ, they should contact the Monitor Trustee, Mr. Bill Berlin. Even if the Antitrust Division decides not to proceed forward with any action against ABI, publicity of the conduct could impact the conglomerate’s actions. Furthermore, records of the complaints to the Monitor Trustee and subsequent investigation, can provide evidence for a future civil suit against ABI.

Across the Bar

A series of interviews of brewers, brew staff, and customers of D.C. breweries
By Jeff Duby

Interview with Ben Evans of Hellbender Brewing Company

Jeff Duby: Ok, so for the readers out there who might not know you, can you tell us a little about yourself?

Ben Evans: Sure, I was born in D.C. and grew up in Philadelphia, went to undergrad in rural Pennsylvania, and came back and went to grad school at the university of Maryland, and I’ve been back ever since. I majored in biology and worked in neuroscience during my graduate program. I guess it’s the science background that led to the transition to brewing in a lot of ways.

JD: Now how did you get into brewing? Was it homebrewing? Formal training?

BE: Yeah, it was one of those Homer Simpson presents that my brother and I got my dad when we were in college.  It was a homebrewing kit and we got it because we figured we’d get to drink the beer when we got back from school, but we all liked it and really ended up being a family thing for a while. We ended up doing some really awful kits for a while [laughs] it really tasted off-putting, kind of like a nasty cider.  So it wasn’t long after that we started getting more advanced, getting into all grain and being more selective with our hops.  We really got the bug, our beer quality improved greatly from there. 

JD: At one point from being a homebrewer did you want to get into brewing as a professional thing?

BE: It wasn’t an overnight thing, but during the summer between undergrad and grad school I was playing rugby and one of my teammates was the head brewer at a local brewpub. He invited me to brew with him and started showing me how to brew on a 15 barrel system. I would travel up there during grad school whenever I could up in Delaware and over the course of grad school and research, I started thinking maybe I could make a run at going into brewing.

After coming back to D.C. I noticed there was a real shortage of breweries in the area. It really sparked my interest because there didn’t seem to be anyone doing what I wanted to do here. My business partner and I started kicking around the idea of opening up a brewery. This is going back six or seven years.

JD: In terms of your brewery, your system, you’ve gone for a very modern very high efficiency system. What went into that decision?

BE: At the end of the day we really wanted to focus on being as sustainable as possible. It was a little more expensive as a system, but with the savings on water and grain we knew we could pay it off faster over time.  It starts to pay for itself pretty quickly, so going for modern equipment to us was a no-brainer.

JD: What’s your brewing philosophy? What are you trying to accomplish?

BE: We brew some traditional beers, but we really like to do our own things, we like to brew our own way and try to come up with some innovative beers.  Some of my favorite things don’t fit a lot of traditional styles.  Our Redline Ale for example is probably a little hoppier than a traditional American Amber, I like our seasonals as well.  Our Grampus which is on right now is something I’ve been brewing for about ten years, and it’s something between a nut brown and a porter.  It’s kind of got its own thing going on.  We try to keep things fresh, mix things up using different hops, different barley, and different yeast strains.  Of course we want to make beers which are great, but we also want to make each one distinct as well.

JD: And for everyone out there who may not know, what is a hellbender?

BE: A hellbender is a giant salamander which is indigenous to this area and a lot of the northeastern United States. It’s a local endangered species; we went with that name because it goes along with our philosophy of sustainability and locality.  Sustainability has always been key to our philosophy and it’s given us a lot of pleasure to partner with a lot of amazing institutions like the National Zoo, the U.S. Forestry Service and Freshwaters Illustrated.  Recently we’ve been able to help by raising money through fundraisers which have contributed to the creation of an Appalachian salamander exhibit at the National Zoo.  We’ve also offered screenings of a film called The Last Dragons which is about hellbenders.  On top of that, it looks cool and sounds cool and makes a cool logo.

Jeff Duby is a homebrewer and a beer nut.