This contents of this page are copyright 1997 by Jay S. Hersh and may not be reproduced in whole or part without the author's express written consent. Dr. Beer ® is a registered trademark of Jay S. Hersh.
What is a trademark?
The following link http://www.ipo.org/trademarkpub.htm provides a simple, straightforward explanation of what a trademark is.
Why is the term Dr. Beer® trademarked and can I use it to refer to various beer related activities?
Lots of people who do business trademark names associated with their business practices. This is done to protect their rights to brand names they have worked hard to develop recognition for. If you've already seen the prior page on the history of Dr. Beer® you'll know that this is the case here. Registering it as a trademark protects it from being genericized. A concrete example of efforts to prevent a brand name from becoming genericized was the campaign launched by Xerox to introduce the term photocopying rather than Xeroxing. Allowing the term Xeroxing to enter the lexicon as a term for making an electrostatic reproduction would have genericized the Xerox trademark. Shredded wheat, escalator and Thermos are all examples of registered trademarks lost due to lack of policing of the mark, and subsequent generic adoption of them in the lexicon. The Xerox campaign cost lots of money.
Additionally by trademarking this mark I can allow it to continue to potentially be available to individuals for use in organizing sensory evaluation training seminars such as those described in these guidelines (see how farther down). If you wonder why trademarking it was necessary, keep reading. At about the time I filed the trademark (February of 1996), which cost me almost $300 of my own money, I had heard rumors that others were aware of the existence of the term.Having used and popularized the term for almost a decade I did not want to risk someone else trademarking it and preventing me from using it. This in fact almost happened. Some 6 months after I filed for the trademark (which took over a year to issue) I went to register the domain name drbeer.com only to find that a public relations firm operating on behalf of Miller Brewing had grabbed it (that is why I use doctorbeer.com). Miller also subsequently filed an intent to use Dr. BeerŪ as a trademark in another class separate from the one I filed in. Eventually Miller apparently abandoned their attempt to file the mark in a different class, most likely based on an office action sent them by the patent and trademark office. While I'm not aware of the content of that office action it likely raised specific conflicts between their intended usage and my usage. Given that my usage was based upon prior use rather than intent to use Miller appears to have chosen to abandon their attempt to trademark the term. Had they been successful, or preceded me, you can be sure that no one else would be allowed to use it. "But didn't you use it first?" you ask. Well with trademarks first to register has a big advantage. If someone beats you to the punch it costs a lot of money to prove prior usage and overturn the trademark, and then you still must file for it yourself and await another review process.
Miller wasn't the only big brewer paying attention. In filing the mark I neglected to make a standard disclaimer. Attorneys from Anheuser Busch noticed this at the last minute during the comment period in which the mark was published for public comment (beginning on October 1st 1996). This led them to file for an extension of the trademark review period and to forward specific oppositions to myself and the patent and trademark office. The error I made, which the patent examiner also failed to catch due most likely to the incredibly obvious nature of it, was to fail to disclaim rights to the word Beer apart from the mark as shown. What that means is that I needed to specifically indicate that I wasn't trying to trademark the word Beer. Anheuser Busch decided they had a vested interest in keeping the word Beer available to the general public, not that it was my intention to reserve that word :-) :-). This amendment was promptly made in December of 1996. About eight months later, some 17 months total, the trademark was finally approved.
So you own the mark, is there any way I can use it?
The answer is yes, within certain limitations. I use the mark for two activities. Beer style appreciation/education classes and sensory evaluation training, (the latter being the generic term provided for similar activities not conducted under the Dr. Beer® brand name).
These activities have, and continue to be conducted in interstate commerce. The beer style appreciation courses have mostly been focused here in Boston at adult education centers. As plenty of people do these things on their own around the country and I wish to uniquely protect my identity in hosting these the mark is not available for licensing for this purpose and may not under any circumstances be used in this manner.
The sensory evaluation training seminars, guidelines for which are contained below the page above this one, are a different story. I have maintained and propagated these guidelines for years and have encouraged others to use them. To further encourage others to do so I have chosen to make the Dr. Beer® brand available under license for the *nominal* fee of $1. If you would like to license the Dr. Beer® brand name for use with a sensory evaluation training seminar you intend to host, please e-mail your name, address, phone number, and e-mail to firstname.lastname@example.org. I will send you a copy of the straightforward licensing agreement. You can then sign and return it with the $1 licensing fee.
Please note that due to the specifics of trademark law the $1 fee, known in legal parlance as consideration, must be paid in exchange for the right to license use of the mark. No exceptions to this can be made so please don't even ask.
Thanks and good luck. Jay Hersh email@example.com
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