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Schlafly name battle

Tom Schlafly and Phyllis Schlafly. 

Longtime conservative activist Phyllis Schlafly has lost her fight to block the maker of Schlafly beer from trademarking the brand’s name.

The U.S. Patent and Trademark Office, in a decision last week, sided with the St. Louis Brewery, which applied for the Schlafly trademark in 2012 as its sales began to take off outside of Missouri.

In her opposition to the trademark application, filed four years ago, Phyllis Schlafly argued that the brewery — which was co-founded in 1991 by Tom Schlafly — shouldn’t be able to trademark a name that she made famous after decades in the public eye.

Phyllis Schlafly, who turns 92 on Monday, is known for founding the conservative Eagle Forum and helping lead the successful opposition to the Equal Rights Amendment in the 1970s. Tom Schlafly, a St. Louis attorney and the brewery’s largest shareholder, is Phyllis Schlafly’s nephew by marriage — she married his uncle, the late John Fred Schlafly.

Schlafly Beer expanding brewing capacity

Bottles of Schlafly Summer Lager roll along the bottling line at the Schlafly brewery in the Bottleworks in Maplewood on Thursday, Jan. 14, 2016. Photo By David Carson, dcarson@post-dispatch.com

“In connection with its usage as a surname, it has the connotation of conservative values, which to millions of Americans (such as Baptists and Mormons) means abstinence from alcohol,” Phyllis Schlafly’s filing with the trademark office stated, adding that “an average consumer in Saint Louis and elsewhere would think ‘Schlafly’ is a surname associated with me.”

In addition to Phyllis Schlafly’s opposition, her son Dr. Bruce Schlafly also filed an opposition to the brewery’s trademark registration, alleging that trademarking the Schlafly name could negatively impact the orthopedic surgeon’s reputation by associating his name with alcohol.

But in its decision, dated Aug. 2, a trademark office board dismissed Phyllis Schlafly’s and Dr. Bruce Schlafly’s opposition filings, which were consolidated.

The board, noting that the law allows a trademark to be registered if it has acquired distinctiveness, rejected the argument that a trademark shouldn’t be allowed because it’s primarily a surname.

The decision doesn’t mean the trademark has been awarded to the brewery; it just removes an impediment.

“I’m very pleased because it shows what we argued all along — that the name has achieved distinctiveness in regards to beer,” Tom Schlafly told the Post-Dispatch. “It’s a huge relief. It guarantees that someone else can’t brew beer and call it Schlafly. As we continue to make investments in the business and grow, it provides protection.”

In its decision, the board said it considered testimony by the brewery’s co-founders Tom Schlafly and Dan Kopman that numerous national publications have referred to the business as Schlafly beer and its beers have won competitions across the country. Schlafly beer is sold at more than 10,000 retail locations in 15 states and the District of Columbia, including Target and Whole Foods stores.

Annual revenue for the brewery was not disclosed, but “the revenues show steady annual increases between 1999 and 2014,” representing almost a tenfold increase, the opinion stated.

Phyllis Schlafly argued that the recognition of the brewery’s trademark should be quantitatively compared to the recognition of her surname, but “the statute calls for no such popularity contest,” administrative trademark judge Anthony Masiello wrote in the opinion.

“Over a period of almost 25 years, applicant has conducted its business in such a way as to establish an association between the name Schlafly and its beer,” the opinion stated.

“Inasmuch as there is no evidence of market proximity between (the brewery) and the activities of Phyllis Schlafly, there is no reason to believe that those activities have interfered with the ability of customers to associate” the brewery’s trademark with its goods, the opinion continued.

Phyllis Schlafly declined to comment for this story, but her attorney and son, Andy Schlafly, said he may appeal.

“I’m disappointed that the decision did not come to terms with the purpose of the statute that generally prohibits obtaining a trademark in a last name,” Andy Schlafly said. “We’ll probably appeal it to a court to have a court apply the statute more strictly.” Andy Schlafly said he’ll reach out to the brewery first to see if they’ll limit the scope of the trademark application to beer sales only.

“Our main concern is a future owner may take this trademark and try to interfere with my clients’ uses of their own name outside of the beer industry,” Andy Schlafly said.