Anheuser-Busch did not get to be the world's largest brewer by being gentle with competitors, not even tiny competitors such as Diamond Bear Brewing company of Little Rock. A-B has ordered Diamond Bear to stop using the word "ultra." One of Diamond Bear's four beers is called Ultra Blonde. A-B makes Michelob ULTRA, among many other beers, and says that it owns the right to use "ultra" in regard to beer.
Michelle W. Alvey of St. Louis, a lawyer for Anheuser-Busch, wrote Russ Melton, Diamond Bear's president and chief executive officer, last month:
"We have learned that you are using the mark ULTRA, in conjunction with your house mark, in connection with the sale of beer. This violates A-B's trademark and other intellectual property rights. Such violation of A-B's rights may subject you to an injunction, damages, treble damages, an accounting of profits, and attorneys fees under applicable federal and state law."
Diamond Bear's lawyer, Deborah Truby Riordan of Little Rock, wrote what seems a fairly crushing response, beginning by saying that Diamond Bear was using the name Ultra Blonde, not ULTRA, and was seeking a trademark for that name from the United States Patent and Trademark Office. "The filing has been amended to disclaim the exclusive right to use the word 'ultra' with regard to beer," Riordan said. She continued:
"It is my understanding that Anheuser-Busch's marks MICHELOB ULTRA and ULTRA have not yet been granted trademark protection by the USPTO because of an opposition filed by Miller Brewing Company [A-B's biggest competitor]. As you well know, Anheuser-Busch has itself long taken the position that 'Ultra' is a generic, common term used to describe or designate various types of beer."
(While Miller is now opposing Anheuser-Busch's effort to gain exclusive rights to use "ultra" in regard to beer, A-B earlier successfully opposed Miller's efforts to trademark the words "ultra lite" in connection with beer. In that case, A-B told the Patent and Trademark Office that Miller's application should be denied because "The term ULTRA is a common term used to describe or designate various types of beer including ultra-premium beer and ultra-light beer.")
Alvey growled back, but not so loudly, on March 2:
"I received your correspondence … regarding Anheuser-Busch, Inc.'s ('A-B') objection to Diamond Bear Brewing Company's use of the mark ULTRA. We disagree with your client's position and the claims set forth in Via [sic] your correspondence.
"As you are aware, A-B is currently involved in opposition proceedings initiated by Miller Brewing Company with respect to A-B's trademark applications for MICHELOB ULTRA and ULTRA. A-B expects to receive registrations once those proceedings are concluded, which will further evidence A-B's exclusive rights in the marks. Consequently, A-B maintains its objections to your client's use of the mark ULTRA and will continue to monitor your client's activities during the opposition proceedings with Miller."
Diamond Bear (from two old Arkansas nicknames, Diamond State and Bear State) is Arkansas's only brewery. The state has four brew pubs too; the five entities make up the Arkansas Brewers Association. Diamond Bear makes three other beers - Pale Ale, Irish Red and Southern Blonde. Diamond Bear beers are sold mostly in Central Arkansas, although there is some penetration into Tennessee and Louisiana, Melton said. Founded in 2000, Diamond Bear is located at 323 Cross Street in downtown Little Rock. "We have three brewers, one salesman and seven owners," Melton said. Diamond Bear sells about 1,000 barrels of beer a year. Anheuser-Busch sells 100 million.
"We respect trademarks, and we respect Anheuser-Busch," Melton said. But he also says "We make beers that people like. The big brewers make beers that won't offend." That frequently means beer with no discernible taste, he said.
Diamond Bear applied to trademark "Ultra Blonde," not knowing that Anheuser-Busch had applied to trademark "ULTRA" and "MICHELOB ULTRA," Melton said. But Diamond Bear's proposed trademark does not resemble Anheuser-Busch's proposed trademarks anyway, he said.
Incidentally, an advertising card for Diamond Bear warns that anyone who uses the "Diamond Bear" trademark without permission "will receive a very stern letter from our lawyer, Mr. J. Noble Daggett." Melton said this was a joke, perpetrated by Diamond Bear's ad agency, Sells Clark. Daggett was a fictional Arkansas lawyer in the novel "True Grit" by Charles Portis of Little Rock. Faced with opposition, the book's central character repeatedly threatens to bring in Lawyer Daggett. So far, Lawyer Riordan hasn't needed his assistance.
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