Brewer responds to trademark tiff
A lakeshore brewery and its lawyer have sent their response to a cease-and-desist letter.
Approximately two weeks after receiving a cease-and-desist letter from the defunct electronic music duo LMFAO, Muskegon’s Pigeon Hill Brewing Co. has decided on its course of action: defend its use of the name LMFAO Stout.
The musical duo claims Pigeon Hill’s Let Me Fetch An Oatmeal Stout, or LMFAO Stout, “is likely to confuse people and dilute their brand.”
The brewery hired attorney Sheila Eddy of Smith Haughey Rice & Roegge to help with the case. Eddy drafted the response, which has been sent to LMFAO attorneys.
Eddy said while it’s normal for companies to send defensive letters, this case didn’t seem appropriate.
“They’re very different industries with a very low likelihood of the markets intersecting,” she said. “We have a number of strong defenses going forward from their initial letter.”
The Pigeon Hill letter includes:
“While we appreciate the concerns raised in your letters, we do not believe there is a likelihood of consumer confusion between Pigeon Hill’s LMFAO STOUT mark and your client’s marks because they differ with respect to the goods and services with which they are each associated, their respective meanings, the trade channels in which each mark is used, and the sophistication of the respective purchasers that buy goods and services sold under the markets. Ultimately, we believe that any attempt to oppose Pigeon Hill’s mark would fail; simply put, there is not even a scintilla of evidence that a likelihood of confusion does, or could, exist.”
The two weeks between the original letter and Pigeon Hill’s response was used to seek input from the community, which co-owner Michael Brower said was 99 percent behind the decision.
“The community response was, to be frank, astounding,” said Brower, who is also an attorney. “A number of those responses included alternative ideas or names. And apparently, one person doesn’t like LMFAO Stout or the name. But we don’t hold that against her.”
Brower said he and his partners — Chad Doane and Joel Kamp — had chosen alternative names from community suggestions, but realized the support warranted a fight. Part of the decision also came from a suggestion from a fellow brewer who indicated giving up might set a bad precedent for the West Michigan brewing community.
“We knew that we had to fight,” Brower said. “Win or lose, we represent the small craft breweries who just want to sell great beer without being bossed around unfairly — and we don’t want to be the guys who set the wrong example.”
Eddy said there are enough trademark fights within the beer industry that seeing big companies come into the scene with nothing to lose doesn’t seem right. She said it’s important to not go down quietly.
Some of the letter has comedic elements, which is another reason why Brower said the Pigeon Hill team decided to work with Eddy.
“The underlying topic provides some humor,” she said. “There are many situations that don’t call for it. It is a serious topic, but in the case with a company called LMFAO, it’s fun to LMFAO.”
An example of the humor in the letter can be found in the following portion:
“In this case, Pigeon Hill’s LMFAO STOUT is known to its customers as “Let Me Fetch An Oatmeal” Stout, or is otherwise likely to be perceived by purchasers as an entirely arbitrary designation, or, at the very least, as being suggestive of “laughing” one’s derrière off out of the sheer enjoyment that arises while imbibing in exceptional beer. Clearly, the many wholesome connotations of LMFAO Stout could not be further from those of the now-defunct party rocking duo, known better to the underground electro house club scene than by the masses, for its once-popular, explicit lyrics and a music video featuring porn star Ron Jeremy with a thematic focus on the male genitalia. Accordingly, it goes without saying that the average craft beer enthusiast encountering Pigeon Hill’s LMFAO STOUT mark in association with beer has not been and will not be confused into believing that there is an association with your client or its marks.”
Brower said the segments Pigeon Hill chose to share on social media were to best show the breadth of what was in the long letter.
“Doesn’t LMFAO stand for something involving laughter?” Brower said. “I would hope that they can take a joke, but seriously, this was a small selection from a long letter. Some of that letter is full of boring legalese. Some of it contains our thoughts on the band’s arguments. Some of it contains ideas on resolutions. Legally, we can’t go into all of the details, but we did want to make sure that we didn’t sacrifice who we are — three guys who believe that beer, business and a healthy dose of irreverent laughter don’t have to be mutually exclusive — when we tackled a serious legal issue.”
Brower said if the partners didn’t think the odds were in their favor, the decision to fight would not have been made. Should it continue, he said they aren’t afraid to see it through.
Pigeon Hill decided on Eddy and Smith Haughey Rice & Roegge partly because the firm recently invested in Muskegon with a new office, and because Eddy fit well into the company’s culture.
“She’s smart as a whip and has extensive knowledge of trademark law,” Brower said. “She has a phenomenal sense of humor. The sense of humor made us feel like she was one of us.”