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The rapid growth of the craft beer industry has brought a flurry of trademark battles between beer makers vying for brand recognition.  The typical lawsuit pits two private breweries against one another, but a recent federal court ruling allows the State of Texas to get in on a fight over the commercial use of images of the historic Alamo mission—as in, "remember the Alamo," Davy Crockett, and Pee Wee's Big Adventure—between Alamo Beer Company and Texian Brewing Company.

In March of this year, Alamo Beer Company filed suit against Texian Brewing Company in the Western District of Texas for alleged trademark and trade dress infringement.  Alamo Beer sells beer using the "Alamo" name and a silhouette of the Alamo on the label.  Texian Brewing also sells beer using a silhouette of the Alamo on its label and tap handle knobs.  The Complaint included the following images:




According to Alamo Beer, the use of the image of the Alamo by Texian Brewing allegedly "contributes a prominent aspect of its commercial impression" that represents an "effort to capitalize on the significant goodwill developed by Alamo Beer since 1997."

The plot thickened in April, when the State of Texas filed a motion to intervene in the suit.  The motion claims that the "representation of the Alamo Mission and the Alamo roofline design" violates the State of Texas's right in such marks.  The proposed complaint alleges that the State of Texas has the right to commercialize the image of the Alamo, that it has acquired common-law rights in connection with its use of the image on products sold in the Alamo gift shop and online, and that it has acted to protect the marks through federal registration.

The State of Texas also claims that "[t]he image of THE ALAMO is famous, and it has been famous for 100 years."  Whereas most trademark owners generally can only enforce their rights against those selling related goods, the owner of a "famous" mark can bring an action for trademark dilution against anyone, regardless of relatedness or likelihood of confusion.  In other words, the case could have implications beyond gift shop products and beer bottles.  In the entrepreneurial spirit for which Texas is known, the case also presents an intriguing example of a state government seeking to monetize intellectual property associated with a historic landmark.

Last week, Judge Fred Biery (yes, that's his real name) entered an order accepting the recommendation of Magistrate Judge Pamela Mathy that the State of Texas be allowed into the suit.  Alamo beer opposed the motion to intervene, but the Court found, among other things, that the State of Texas has an interest in the disposition of the marks that would be impaired if the motion were denied.  With the State of Texas now in the case, it will be interesting to see how this battle over the image of the Alamo develops.