Brexit Beer, Clothes, and Supplements?

The majority of posts and articles about the consequences of Brexit on intellectual property law discuss the implications of Britain’s split on IP protection (see this previous blog post for a more in-depth discussion). However, some companies’ recent rebranding efforts raise a new Brexit IP issue: Can “Brexit” be trademarked?

Potentially in an attempt to make light of the controversial Brexit event, Sam Adams, the renowned beer company, seeks to trademark “Brexit” Hard Cider. However, Sam Adams is not the only one trying to capitalize on Brexit with a somewhat offbeat marketing strategy. A Chicago individual seeks to trademark “Brexit” for a clothing line, and a Colorado company seeks to trademark “Brexit” for their dietary supplements (see this blog post). However, will trademarking “Brexit” really work?

Trademark law tells us that trademarks only protect the association between the trademarked word and the specific goods/services provided. Therefore, theoretically, all three entities above may trademark the same word or phrase since they are in different industries (namely: beverage, clothing, and nutrition). However, the U.S. Patent and Trade Office also states that “generic words are the weakest types of ‘marks’ (and cannot even qualify as ‘marks’ in the legal sense) and are never registrable or enforceable against third parties” (source). For instance, the words “refrigerator,” “car,” and “t-shirt” cannot be trademarked. (Can you imagine how busy lawyers would be if they could be??)

The million dollar question here is whether “Brexit” falls under the same generic category as simple words such as “house” and “road” that we know are not eligible for trademark protection. With over 122 million hits on Google, it seems that Brexit has been successfully initiated into our common vocabularies since its inception in June.

So, what does this mean for Sam Adams, the Chicago clothing designer, and the Colorado nutrition company? They can surely create a “Brexit” Hard Cider and other products, but they likely shouldn’t be surprised if Schlafly, Anheuser Busch, and Yuengling follow suit.

Cheers!