Brat War

I'm going to keep the Border Battle going, just a little bit, with a story. When I moved from Wisconsin to Minnesota, one of the biggest culture shocks I experienced had to do with bratwursts.

In Wisconsin, ancestral home of the bratwurst (in America, at least), a brat is a brat. A coarse, pork-ish sausage, preferably manufactured by either Johnsonville or Klement. 

In Minnesota, a "brat" is a big hot dog stuffed with cheese, or some shit. I can't tell you how many times I went to a barbecue promised brats only to be presented with these abominations. 

Wisconsin 1, Minnesota 0.

I thought of this because the brat companies mentioned above are suing each other in a trademark battle over the mark BACKYARD BRATWURST. The Milwaukee Journal-Sentinel has the story:

Since 2009, Klement Sausage Co. Inc. has held a trademark on the phrase "Backyard Bratwurst." But now, the Milwaukee firm alleges in a federal lawsuit, Johnsonville Sausage LLC is stepping on Klement's intellectual property rights by touting the "Backyard Grilled Brat."

This, Klement says, will not do.

Having used "Backyard Bratwurst" to promote its products since January 2008, the company said in its complaint, the phrase has become linked to Klement in customers' minds. 

Johnsonville's "improper use" of the trademark "has caused and will continue to cause confusion, mistake, or deception among the public," the complaint says. It asks the judge to find that Johnsonville has infringed on the "Backyard Bratwurst" trademark, and bar the company from using any trademarks that are "confusingly similar to it."

I know a bit about trademark law, and I was surprised that Klement had been able to register a trademark for BACKYARD BRATWURST, given that the mark seems to be merely descriptive of the product -- a brat you presumably enjoy in the backyard. And, indeed, a search of relevant records showed that the application had originally been rejected on precisely that basis. 

But then Mr. Klement himself (apparently he did not deign to hire an attorney in the trademark application) wrote a letter to the trademark office:

Somewhat mysteriously, the application was thereafter allowed to proceed, and Klement was awarded a registration for BACKYARD BRATWURST.

Which raises the question: who owns the mark for FRONT PORCH BRATWURST? Mr. Gillette, should we give up our dreams of becoming federal judges and start a business to dominate the other half of the bratwurst market?