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A Case of Bud vs. Spud
Beer Giant Anheuser-Busch takes on P.E.I. potato farmer on use of ''Bud''

9/11/1997

Perhaps it's simply a matter of going back to our roots, but few Canadians would have any trouble distinguishing a washed russet potato from a frosty lager. Yet U.S. beer giant Anheuser-Busch Cost Inc. takes no chances.

Central to the controversy is the use of the phrase "Bud the Spud" and the cartoon picture of a cheerful potato-man trotting along a beach with a radio in hand.
W.P. Griffin Inc. of Elmsdale, P. E. I., successfully registered the trademark for use on potatoes in 1994.

The 50-year-old company, which sells about 600 tractor-trailer loads of potatoes annually, has used the phrase and design on potato sacks for about 10 years. However, in 1995, it ran into a roadblock when it applied to expand the use of the trademark for promotional items relating to the sale of potatoes, such as T-shirts and hats.

Suddenly, the big guns of the Milwaukee-based brewer of Budweiser were directed at the potato grower. "I was very surprised at the scale of Anheuser-Busch's preparation," says John Griffin, secretary-treasurer of W.P. Griffin Inc. "They sent very large binders and documents explaining their position."

"I guess they are trying to have exclusive rights to the name Bud," Griffin says. He maintains that "Bud the Spud" is a popular folk character in Prince Edward Island.
At the same time, opposition was filed to Griffin's trademark application by Stompin' Tom Ltd. of Ballinafad, Ont.

In 1968, Canadian folk singer Tom Connors wrote and performed a song about a truck driver called "Bud the Spud" who hauls potatoes.

Stompin' Tom's statement of opposition claims it has also used the words "Bud the Spud" on items including children's books and song books. It also states that Prince Edward Island awarded Connors a "golden potato" in appreciation of how the song promoted and increased sales of P.E.I. potatoes.
However, Stompin' Tom Ltd. never registered the trademark, whereas Anheuser-Busch's statement of opposition lists 11 "Bud" registrations and seven standing applications.

Anheuser-Busch's statement says use of the phrase "Bud the Spud" and the design on wares "would be likely to create an inference in the mind of the public that such a mark has been licensed, authorized or approved by the opponent, which is not the case."

Roi Ewell, spokesperson for Anheuser-Busch, says "the simple fact is that Anheuser-Busch has strong rights in Bud trademarks not only in beer, but in other products. In regard to the application by W.P. Griffin to register potatoes, we offered no opposition."

The company has a line of Bud clothing and merchandise, he says.
Beer companies are jealously protective of their names and trademarks. They have amassed a significant arsenal of registered trademarks, patents and legal expertise in matters of intellectual property.

Disputes over trademarks have become more heated in recent years. While trademark applications increased 14% in the two-year period ended March 31, 1997, oppositions to trademark applications rose more than 20% during the same period.

Registration of a trademark (a word or design or both) gives the owner the exclusive right to use it anywhere in Canada for wares or services covered in the registration.
Once an application for a trademark is approved, it is advertised in a trademark journal (published weekly). Interested parties have two months to oppose the application or request an extension to prepare an opposition.
Companies often hire trademark-watch services to monitor applications. The largest search firm in Canada is Montreal-based Intelpro, a division of Thomson & Thomson Inc. of Boston. Intelpro links up with a database of 200 countries maintained in Brussels by Compu-Mark, another Thomson division.

Compu-Mark gathers information electronically or by hardcopy from trademark journals and watches for trademark similarities. Their clients decide whether to oppose a trademark application, says Robert Bourassa. Intelpro's regional manager. Their clients are major law firms and large corporations that can purchase the service by region or country at a fixed annual price.

"The service is not expensive in comparison with a company's overall investment in a trademark," Bourassa says.

Intelpro also sells an online service called Trade-mark Scan, which has access to 14 data-bases in North America and Europe.

Gary Partington, chairman of Industry Canada's Trademarks Opposition Board says the most noticeable trend in trademark disputes is the number of cases involving beer companies - about 200-300 active cases at any given time. Companies like W.P. Griffin become unwarily embroiled. Other cases pit beer company against beer company.

Molson Breweries of Toronto is engaged in a dispute with Labatt-owned Oland Breweries of Halifax for selling beer in Ontario with a label claimed to be similar to that of Molson Export. Last year, Molson sought an injunction to force Oland to halt the sale of Oland Export in Ontario. Although the beer with the offending label was first sold in Ontario in March, 1996, Oland argues that the label has been used and marketed throughout the Maritime provinces since 1925. Molson's suit also seeks $5 million in damages. The case is still active.
On another front, Labatt Breweries of Canada got a slap in the face last February when the U.S. Supreme Court dismissed its attempt to trademark the term "ice beer," and deny its use to Anheuser-Busch. Anheuser-Busch argued that Labatt's public claim to have invented ice-brewing in 1992 was a ' transparent falsehood." It told the courts the term "ice beer" has been used for centuries.
Anheuser-Busch has won a respite, at least, in the case of "Bud the Spud." W.P. Griffin withdrew its application last June. "We didn't think we would lose the case," Griffin says, "but we think we can get the same thing without a long, drawn-out fight."

Griffin is now seeking protection of "Bud the Spud" without the potato-man character.

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By Margaret Brady
For The Financial Post

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