Not long ago a colleague brought to my attention a “mea culpa” published on Down The Road Beer Company website, www.downtheroadbrewery.com. Apparently the brewery ran into a bit of trouble with the Alcohol and Tobacco Tax and Trade Bureau, the federal agency tasked with, among other things, policing product labeling for products containing alcohol. It seems that in designing a label for its “Down The Road Rasenmäher Kölsch,” the brewery had broken the rules by depicting the character “Hans Mowermann” operating a power lawn mower while holding up a large mug of, presumably, Down The Road Rasenmäher Kölsch. As we all (should) know, operating machinery while under the influence of alcohol ist verboten!
The article got me to thinking. As a frequent traveler to Cologne, Germany, I have sampled my fair share of the local brew. On those trips my local friends regaled me with stories of the origins and traditions of their unique home brew. If you’re really interested, the German Beer Institute has a nice summary here. One of the key things I learned is that “Kölsch” is an acknowledged regional designation in Germany. Specifically, in 1986 the directors of 24 Kölsch breweries signed the “Kölsch Convention,” stating that Kölsch is both a kind of beer and a geographic designation of origin. As a result of the convention, only these two dozen or so brewers can legally call their beers “Kölsch.” “Kölsch” is also a protected geographic indication in the European Union, (Trust me, that’s really what this means. If you doubt me there’s always Google Translate!).
So, if “Kölsch” is a protected geographic designation, how can American breweries call their beers “Kölsch?”
Geographic designations enjoy protection under U.S. trademark law as both certification marks and collective marks. Some well-known examples of protected regional designations include ROQUEFORT, DARJEELING, BORDEAUX, COGNAC, ZELLER SCHWARZE KATZ, FRANKFURTER APFELWEIN, and DEUTSCHES ECK. DEUTSCHES ECK is a designation for beer from the middle Rhine and lower Mosel areas of Germany. U.S. courts have enforced such geographic designations on theories of both trademark infringement and false advertising (false designation of origin). While most of the reported cases involve registered certification or collective marks, the Trademark Trial and Appeal Board enforced common law rights in the “Cognac” designation in Institut National Des Appellations d’Origine v. Brown-Foremen Corp., 47 USPQ2d 1875 (TTAB 1998).
It seems clear that the Kölsch Convention (or any other entity the can claim title to the Kölsch designation) could move to protect rights in the Kölsch designation in this country, but it has not yet done so. Nevertheless, should that change in the future, artwork issues could become the least of worries for American craft brewers when it comes to brewing and selling a “Kölsch” beer.