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? 

"[W]e find that a hot dog is a sandwich..."

That's a line in this recent decision from the Trademark Trial & Appeal Board. Technically it's dicta, but I think we can consider that important question settled. Next time I go to a ballgame I'm going to go up to the concession stand and say, "One hotdog sandwich, please," just to see what happens.

More importantly, the Board found that "footlong" is a generic term with respect to sandwiches, so Subway can't register a trademark on it.

Previous coverage of this issue here.

In case you're wondering, the last time I checked the litigation over whether Subway's "footlong" sandwiches are deceptively titled had been centralized into a Multi-District Litigation case in the Eastern District of Wisconsin. If I have time, I will see if there have been any post-worthy developments there.

--Bart Torvik

Subway Sued

There is a Subway restaurant just down the street from my office. I occasionally go there for lunch. When I do, my brain says that all I need is a "six-inch" sub and a cup of water. But my body—specifically my belly—objects strenuously. "We demand 12 inches! We demand Doritos!" My belly is  like the House of Representatives, and my brain is like the Senate, you see. Although the upper chamber is dominated by sober, contemplative types, there are a few rabble-rousers up there too. Call them anarchists. They tend to argue that, in the grand scheme of things, that extra six inches and that bag of Doritos certainly isn't going to do any harm. And they will be so delicious. And they will shut up those plebeians down in the belly. The negotiations go right up to the brink, but usually President Mouth says, "I'll have a footlong ..." and Secretary Hand grabs a bag of chips. The brain gets a pittance when soda is eschewed.

This is on my mind because Subway has been sued here in Chicago (and elsewhere—this has been a feeding frenzy* for plaintiffs' lawyers) for allegedly mischaracterizing the size of its "footlong" and "six-inch" sandwiches. In fact, say the complainants, so-called footlong subs are often only 11 or even just 10 inches long, and six-inchers are actually just half of that. Here's a picture from the lawsuit: