The latest legal battle in beer’s ongoing series of trademark disputes is taking place between two breweries set 2,000 miles apart and, until now, have presumably had a cordial relationship.
Earlier this month, San Diego's Abnormal Beer Co. shared publicly on its Facebook page news that Munster, Indiana's 3 Floyds Brewing was proceeding with legal action to protest Abnormal's registration with the U.S. Patent and Trademark Office (USPTO) for a trademark on its name. Filed on Jan. 15, 2016, president and CEO Matt DeLoach said his California company received notice in 2017 that the name “Abnormal” would create confusion with 3 Floyds customers, and should remove their trademark request.
The point of contention is the use of the word “abnormal” as trademark, which 3 Floyds says is too similar to a slogan used by the company: "it's not normal." According to the USPTO online archive, 3 Floyds has registered 71 various trademarks, ranging from the brewery's name to individual beers like Alpha King, Drunk Monk Hefeweizen, Gorch Fock, YumYum, and many more.
The specific citation put up for consideration against Abnormal Beer relates to Section 2(d), 15 U.S.C. § 1052(d), which says that a trademark “[c]onsists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.”
Abnormal, which will produce about 3,000 barrels of beer in 2018, doesn’t distribute outside of San Diego. 3 Floyds made about 68,000 BBLs in 2017 and is on track for much more, and distributes its own beers solely in Indiana, Wisconsin, Kentucky, Ohio, and Illinois. Beers made in collaboration with other breweries can be found in other states (and countries), however, including the ongoing WarPigs brewpub partnership with Mikkeller.
3 Floyds, which often declines to talk to media, did not reply to GBH’s request for comment.
3 Floyds successfully registered a trademark for “it’s not normal” on Sept. 28, 2010, and the phrase is seen on the brewery’s about page and featured on merch. It was also found on Untappd, where a listing was created for a beer on Oct. 6, 2017 called "It’s Not Normal NOT A BEER." Information in the space that normally contains details about a beer brand says “NOT A BEER — DO NOT check in this entry. ‘It's Not Normal’ is 3 Floyd's motto, not a beer." The Untappd listing came 13 days after Abnormal CFO Elvin Lai spoke directly with co-founder Nick Floyd on the issue at the 2017 Copenhagen Beer and Music Festival in Boston.
Greg Avola, co-founder and CTO of Untappd, confirmed to GBH that such a move—posting a fake beer solely to list a company’s motto—was out of the ordinary. He also said that the listing was created by a private user, and while he couldn't share details with GBH, said that an associated email address and other account details "does not lead to believe they are affiliated with with brewery."
Avola did send a screenshot of the created beer brand to GBH, which shows that an Untappd moderator made several changes to the listing, including changing a status from "Year-around" to "One-Time Brew," its style and name from "It's Not Normal" to "It's Not Normal NOT A BEER." Avola tells GBH that user confusion happens often on the check-in app, and this instance doesn't seem too out of the ordinary.
"[A user will] read something on a bottle, and think that's the name of the beer and create it, and then it snowballs out of control," Avola says. The listing was removed on Sept. 19.
Brendan Palfreyman, who specializes in brewery trademarks as an attorney at Syracuse, New York's Harris Beach PLLC, tells GBH that from a legal standpoint, trying to use an Untappd listing as proof of ownership shouldn't matter. Because 3 Floyds had a registration on "it's not normal" since 2010, that's where a successful argument would start.
"I don't know what the purpose of creating an Untapped listing would be from a legal standpoint," he says, "although motivations could be unrelated to this dispute."
Creating the listing would be akin to "token use," an effort to simply put a product into the marketplace for the sole purpose of claiming first rights. In reality, a product would need to have shown "bonafide intent," Palfreyman says, and actually be produced to exist within that space. It's all likely moot, he adds, because the core of any argument would be the opposing timelines of 3 Floyds’ mark (2010) and Abnormal’s version (2016).
Palfreyman likened the Abnormal-3 Floyds spat to a similar case of Michigan’s Bell’s Brewery and North Carolina’s Innovation Brewing, which had legal proceedings over trademark last from 2015 to 2018. In that instance, Bell’s filed a complaint against Innovation stating that Innovation’s name was too close to Bell’s slogan of “Bottling innovation since 1985.” Bell’s also noted there could be confusion between the two breweries because their use of the slogan “inspired brewing,” arguing it was too close to the name and meaning of “Innovation.”
Innovation eventually ended up winning the case after the Trademark Trial and Appeal Board found that the two breweries and products “differ in sight, sound, meaning, and overall commercial impression” so much that confusion wasn’t likely.
This kind of back-and-forth isn’t uncommon in beer or business, but the tertiary pieces to the Abnormal-3 Floyds puzzle are a bit oddly constructed. By DeLoach’s point of view, attempts to move forward have been made unnecessarily difficult. On Aug. 14, Abnormal shared a post on Facebook with Lai posing with Nick Floyd, the latter prominently showing an outstretched middle finger to a cell phone camera capturing a selfie of the two during the 2017 Copenhagen Beer and Music Festival in Boston. According to DeLoach and Lai's account, Lai told Floyd about the legal challenge at the event last year, to which Floyd replied that it would be taken care of outside of courts. Their interactions were over the festival’s Sept. 22 and 23 dates, two weeks before the Untappd listing first appeared.
"[Nick] explained to him the lawyers are there to protect him from big beer and no worries, he'll take care of it," DeLoach tells GBH. That's why Abnormal shared a thank you post on Facebook. "But immediately after we were notified by their attorney that was not the case and we needed to withdraw our trademark."
DeLoach’s fear is that if Abnormal were to withdraw, that would essentially provide custody of the trademark to 3 Floyds and could even open up his brewery to further legal action. If 3 Floyds is uncontested in its claim to “abnormal” or “it’s not normal,” DeLoach believes there’s a chance the Indiana brewery could then make a claim that the Abnormal Beer Co. title shouldn’t exist at all. And then there are extra layers to the situation, because Abnormal Beer (founded in 2015) was spun off from Abnormal Wine Co. (founded in 2012). Plus, the business has been working to also start Abnormal Spirits, all of which DeLoach says are now under contention.
“It’s a bummer,” says DeLoach matter of factly. “They’ve been recognized as one of the greatest breweries in the world and we feel like we’re getting bullied. It seems counter to what the industry is about and it just sucks.”
But it gets even weirder, as 3 Floyds has been in a similar situation before. In one instance, a Serbian company, Doroevic Brend Menadzment, had owned the trademark for "Abnormal" from 2009 until its cancellation in 2016, which coincides with the timeline in which 3 Floyds had registered the "it's not normal" mark. There’s no indication that 3 Floyds attempted a protest.
A second example ended amicably. In 2015, Hudsonville, Michigan's White Flame Brewing Co. settled a trademark dispute with 3 Floyds when both businesses were preparing to sell a bottled Imperial Stout called Black Flame, both one-off specialty releases. According to the MiLive website, White Flame owner Bill White drove to Munster and got an agreement from 3 Floyds that it would be OK to have the name—3 Floyds would discontinue its use and both would move on.
All this led to a Facebook post from Abnormal with a photo of their taproom and a full glass of beer next to a placeholder card marked "Reserved for Nick." It was an attempt to share info about the Abnormal-3 Floyds issue publicly while showing a face-to-face chat was preferred. DeLoach says that he's reached out to Nick Floyd multiple times but has not heard back.
And so the issue will move on, as Abnormal plans to add more budget to about $20,000 of legal fees it’s already spent on the issue.
—Bryan Roth