Thursday, August 4, 2005

Page 15

REMINISCING (Column)

Anheuser-Busch Brings Suit Against ‘DuBois Budweiser’

By ROGER M. GRACE

Anheuser-Busch long tolerated the operations of DuBois Brewery, maker of “DuBois Budweiser.” It did sue the small Pennsylvania brewery for infringement in 1908, but dismissed the action without prejudice the following year, supposedly because company president Adolphus Busch was in ill-health and conserving his energies.

It wasn’t until 1940 that it filed a new action, 35 years after the introduction of “Dubois Budweiser.”

1951 ad

The Associated Press reported on March 11, 1947:

The DuBois Brewing Co. of DuBois, Pa., contended in Federal District Court Monday that the name “Budweiser Beer” is a geographic and descriptive name and is not the exclusive name of the Anheuser-Busch Brewing Corp. of St. Louis.

Judge R.. M. Gibson heard arguments in a suit entered by Anheuser-Busch to bar the Pennsylvania company using the name Budweiser for its products.

“We have a great mass of testimony to show that where Anheuser-Busch Budweiser and DuBois Budweiser are sold together, there is no confusion,” Elder W. Marshall, former Allegheny county judge and counsel for the DuBois company, declared.

“The bartender knows his customers and knows which Budweiser they want,” he continued.

“Where a stranger asks for Budweiser, the bartender asks him, ‘Anheuser-Busch or DuBois?’ ”

Marshall said Anheuser-Busch had no exclusive right to the name when DuBois first used it in 1905 and that nothing has occurred since to justify issuance of an injunction against DuBois using the name.

Gibson held on Sept. 9, 1947, that “Budweiser” was not a geographic term as applied to the product of either litigant. The beer of neither brewer came from Budweis. And the word was not a mere description because there was no such thing as a Budweiser process for making beer. It was, plainly and simply, a trade name, he found.

Declaring DuBois to be an infringer in using that trade name, the jurist said:

“In the instant case the Court has had little difficulty in determining that in 1905, when defendant adopted its trade name, the name ‘Budweiser’ identified beer so marked to the general public as the product of Anheuser-Busch.”

As to laches, Gibson wrote:

“While the delay in bringing the action has been great, it must not be forgotten that defendant faced the fact that suit might again be brought when it consented to the withdrawal of the 1909 action, and that since the withdrawal it had notice that plaintiff was not consenting to its use of the trade name.”

The majority of a three-judge panel of the Third U.S. Circuit Court of Appeals saw it differently. Judge John J. O’Connell remarked in his May 12, 1949 opinion:

“Certainly we have found no case in which injunctive relief was granted after an inexcusable delay for a comparable period of time....In our view, this is not merely a matter of laches; Anheuser has been grossly remiss.”

O’Connell said of the dismissal in 1908:

“The conclusion is irresistible that the Association feared the outcome of its 1908 suit, and that the long delay prior to the filing of the instant complaint amounted to at least an acquiescence in use of the word by DuBois, which Anheuser should be estopped to deny at this late hour, if it was not an actual abandonment of the exclusive right as far as DuBois was concerned.”

The DuBois brewery was purchased in 1967 by Pittsburgh Brewing Company which continued to produce DuBois Budweiser. It ceased production in 1972 following an adverse decision in the U.S. District Court for the Western District of Pennsylvania.

The Associated Press reported on Oct. 1, 1970:

A 65-year court battle over the use of the name “Budweiser” by two brewing companies apparently came to a head Wednesday when a federal judge shut off the tap on “DuBois Budweiser.”

Judge Louis Rosenberg ruled in U.S. District Court that the name “Budweiser” is now the exclusive trademark of Anheuser-Busch, Inc., of St. Louis….

The two companies in the past reached several court agreements limiting the area in which the DuBois product could be sold, but each agreement was marred by charges of violation.