Earlier this year, the staff managing Patagonia鈥檚 social-media accounts noticed something odd. The brand kept getting tagged in photos听at pop-up bars in ski towns around Colorado. 鈥淚s this you?鈥 customers would ask.
These pop-ups, with their听reclaimed wood decor,听were staffed with people in branded shirts and puffy coats with the word 鈥淧补迟补驳辞苍颈补鈥听emblazoned across the front. There was beer called 听for sale, and a sign promised to听plant a tree for every case of beer sold. In other words, these are all things one might expect from the California-based outdoor-gear retailer: Patagonia crafted its own beer as part of its Provisions line in 2016 and is, of course, known for its planet-friendly ethos.听
However, something seemed amiss with the logo.
In his 2005 book ,听Patagonia听founder听Yvon Chouinard听describes the inspiration for the company鈥檚听iconic logo:听鈥淭o reinforce the tie to the real Patagonia, in 1973 we created a label with a stormy sky, jagged peaks based on the Mount Fitz Roy skyline and blue ocean.鈥 On the Patagonia Cerveza label, though, generic lumps form the mountain backdrop. It looked like the 鈥淜ate Spud鈥 version of a Kate Spade purse you might pick up from a street vendor in New York City鈥攃lose but, well, not quite.
Unlike those Kate Spud bags, these Patagonia-branded puffies听and beer were not the work of a micro-entrepreneur trying to eke out a living鈥攖hey听belong听to 听(AB InBev),听the beer behemoth that owns Budweiser, Michelob, and听a handful of craft brewers. On April 9, 2019, Patagonia filed a lawsuit alleging听trademark infringement, unfair competition, dilution, and fraud, seeking听a judicial declaration that an AB InBev听trademark registration听from 2012 is void. The suit argues听that听not only is the company鈥檚听long-standing听reputation as a sustainable business at risk, but AB InBev鈥檚 claim to the trademark may be illegal, thanks to a technicality听on the original trademark application.听Patagonia is asking that, among other things, the court demand AB InBev听pay for damages done to the听brand听as well as pay听the company听for any profits made while听using the听name.
鈥淲e are suing Anheuser-Busch InBev over the name, logo, and marketing of its beer,鈥 says Corley Kenna, a spokesperson for Patagonia.听鈥淭hey are deliberately attempting to take advantage of the hard-earned reputation that we have built over the last 40 years as a company dedicated to environmental conservation.鈥
AB InBev says the lawsuit is without merit.听In an e-mail听statement, a spokesperson for AB InBev wrote: 鈥淥ur Patagonia beer was first brewed more than 10 years ago in Argentina. In 2012, Patagonia beer was brought to the U.S., and we have owned the trademark since then. We stand behind our brand and will defend our trademark rights.鈥
Patagonia knew about a trademark registering听鈥淧补迟补驳辞苍颈补鈥听as the name for a beer company as early as 2013,听says Robert Tadlock, associate general counsel for听the company. A year after launching听, a food听line听introduced听with the mission of changing听our agricultural systems for the better,听it did a one-off beer project with the New Belgium Brewing Company. As Patagonia听was getting ready to release听the brew, New Belgium received a听letter from AB InBev demanding听the partnership not use Patagonia in its name. New Belgium backed off听and didn鈥檛 challenge the claim to the name at that point, something some trademark lawyers say may be an issue for the brand.
This time, however, things were different.听What caught Patagonia听off guard were the parallels between Patagonia Cerveza鈥檚 branding efforts and its听own. 鈥淲e felt compelled to act, given how brazen it was,鈥 says Tadlock. 鈥淭he launch of their marketing campaign this winter certainly made it into something we felt like we had to respond to.鈥
鈥淲hile we think this is a really brazen attempt to rip off our logo, and that鈥檚 certainly part of it, it鈥檚 deeper than that.鈥
When you , you鈥檙e only granted that trademark for a specific area of commerce, says Jennifer Fraser, the trademark-practice group leader at the national law firm听. A prime example of this is Delta Faucet听and Delta Air Lines. They鈥檙e similar trademarks operating in totally different markets. Where this gets tricky is the fact that Patagonia actually does operate in the beer space, although it entered that market after AB InBev registered for its Patagonia trademark.听
Patagonia argues in its filing that Patagonia Cerveza is confusing听to customers. The听law may be on its side here, according to Fraser. 鈥淭he standard for trademark infringement is whether consumers are likely to be confused,鈥 she says. Patagonia has screenshots from customers perplexed听by Patagonia Cerveza鈥檚 marketing. 鈥淓xamples of actual confusion can be very significant evidence of whether customers are likely to be confused,鈥 says Fraser.
Patagonia also alleges that AB InBev is engaging in something called dilution. There are two types of dilution:听The first is dilution by blurring, in which another entity using a nearly identical mark diminishes the distinctiveness of the plaintiff鈥檚 mark. The other is dilution by tarnishing, which means you鈥檙e听hurting a brand鈥檚 carefully crafted reputation. Patagonia says that, in this instance, it鈥檚 worried about both. 鈥淲hile we think this is a really brazen attempt to rip off our logo, and that鈥檚 certainly part of it, it鈥檚 deeper than that,鈥 says Kenna.
For decades, the company has branded itself as focused on sustainability. It鈥檚 a , it has听asked its听consumers to not buy new stuff, and it鈥檚听suing the government over the protection of Bears Ears National Monument. In 2013, Patagonia founded Patagonia Provisions. 鈥淭he co-opting is more dangerous than just taking a logo. It鈥檚 just this whole movement that we鈥檙e trying to create around how we need to reform our agriculture practices. Here at Patagonia, greenwashing is something we take incredibly seriously, and we never want be accused of that,鈥 Kenna says.听
Over the years, AB InBev has been听called out for听greenwashing (, and , for a few听examples), though the company insists its commitment to the environment is sincere. For example, in this 2019 , the brand touted its push to use wind power in its production plants. On the , it proudly proclaims that as of 2018, 100 percent of the energy used in brewing Budweiser comes from renewable sources. That only covers the energy used to brew, not run听the warehouses,听offices, or any of the other energy-consuming requirements of a large business, but Budweiser hopes to cover all operations via renewable energy by 2025.听According to AB InBev鈥檚 , only 16 percent of its total energy usage came from renewables, though a source at the company said that the current number is 50 percent.听听
Another reason some accuse AB InBev of greenwashing comes from its political ties. According to data from the , in 2018, AB InBev鈥檚 PAC spent $1,323,000 on campaign contributions. The vast majority of those campaign contributions went to Republican political-action committees and candidates. For example, AB InBev鈥檚 PAC gave $120,000 to the National Republican Senate听Committee, while giving just $30,000 to the Democratic Congressional Campaign Committee. While there are pro-environment Republicans, the specifically questions the science behind climate change and argues for the development of all types of energy鈥攊ncluding more oil and gas exploration. It suggests weakening the Endangered Species Act听and advocates for more fossil-fuel extraction on public lands. AB InBev has also taken heat for supporting the U.S. Chamber of Commerce, which has听听been reticent to admit that climate change is real. The chamber has also supported issues like the and expanded .
While Patagonia doesn鈥檛 have a PAC, its giving aligns听with its stated environmental mission. Over the past 30 years, the company donated more than $100 million to grassroots environmental-activism groups. Its Patagonia Works program not only helps pair customers with听local听grassroots groups, but it also helps identify potential groups for听new grants.听
Perhaps the strangest thing about this lawsuit is the claim that AB InBev procured the听Patagonia trademark unlawfully.听According to Patagonia鈥檚 filing, a German brewer named Warsteiner, which is not part of AB InBev,听registered the Patagonia trademark in June 2006, with an intent-to-use听application, which Fraser says gives it听three years to put a product on shelves. Trademarks are use-it-or-lose-it deals. You can鈥檛 just file a trademark for something you may someday sell. However, Fraser says you can apply for extensions if it鈥檚 taking longer than anticipated. Which is exactly what Warsteiner did鈥攅very six months for six years.
Then, in 2012, an AB InBev attorney stepped in as Warsteiner鈥檚 attorney of record for renewing the intent-to-use application, according to the filing. Patagonia alleges that AB InBev also submitted label designs to the Alcohol Tax and Trade Bureau听for approval at the same time. Four days before Warsteiner鈥檚 intent-to-use application was set to expire, AB InBev filed those labels as proof that Warsteiner was doing business with the Patagonia name. However, just showing proof that the label was submitted for approval is different than actually engaging in commerce, which is what would have been required to keep the trademark, according to the lawsuit.听
鈥淧atagonia is challenging the legitimacy and questioning the timing,鈥 says Fraser, adding, 鈥淧atagonia is also challenging who was really acting.鈥 Warsteiner is technically a competitor of AB InBev, so it鈥檚 somewhat odd that not only was an AB InBev lawyer filling in on these filings, but just four months after the it was issued, the听trademark听was transferred to AB InBev. We reached out to Warsteiner to get its take on events, but our calls were not returned.听
All this is not to say that Patagonia has a clear path to victory with this suit. And it will likely have to answer the question of why it has听waited so long to contend the trademark registration. Before a new trademark is officially registered, the pending trademark is published in the U.S. Patent and Trade Office鈥檚 weekly . That, in theory, gives companies like Patagonia a heads-up if someone is planning to register a similar mark. We asked Patagonia鈥檚 attorney why they hadn鈥檛 taken issue with the trademark at the time of registration and got a 鈥渘o comment鈥 back in an e-mail.
Further confusing things is the fact that Patagonia does have a new beer out. It鈥檚 called Long Root Wit, in part听because AB InBev owns the patent for Patagonia when it comes to beer, it doesn鈥檛 have Patagonia鈥檚 name on it. Patagonia Cerveza is floating around the marketplace, too, though the company鈥檚 doesn鈥檛 list where it鈥檚 being sold.
It will likely be a while before anything definitive happens with this case. 鈥淭rademark cases in federal court, the fastest you would have your day in court would be generally a year, and that鈥檚听in a very fast court,鈥 says Fraser. In the meantime, AB听InBev听is still able to sell Patagonia-branded beer. 鈥淚t鈥檚 possible that the court will make preliminary determinations that may affect AB鈥檚 ability to use the trademark鈥攁nd to market and frame its product and brand in some of the ways that we鈥檝e addressed in our complaint鈥攚hile the case is pending. Until the court orders it, AB is not required to stop using the mark,鈥 says Tadlock. And of course, the two sparring parties may settle out of court, as often happens, says Fraser.听
And听what does this mean听for you? You don鈥檛 need to choose sides at the bar.听