By Richard Stobbe

There is a rule in Canadian trademarks law that you can’t get a trademark for a word that describes the product you’re selling. Makes sense, right? No-one should have a monopoly over a word that is descriptive of the thing they’re selling. Such a term should be open to everyone to use.

Drummond Brewing applied to register BEER BEER as a trademark for “beer”.  Wait, let’s re-read the paragraph above. Isn’t BEER BEER clearly descriptive when used in association with the sale of beer?  Drummond, apparently, did not think so when it filed its application claiming use since 2009. They held this opinion despite an earlier decision (Coors Global Properties, Inc. v. Drummond Brewing Company, 2011 TMOB 44 (March 11, 2011)) which found BEER BEER to be clearly descriptive.

There is well-known decision from the early 1980s (Pizza Pizza Ltd. v. Registrar of Trade Marks (1982), 67 C.P.R. (2d) 202), where the court decided that the mark PIZZA PIZZA was found not to be clearly descriptive of “pizza” since the expression PIZZA PIZZA was not a linguistic construction that is a part of normally acceptable spoken or written English.  If it works for pizza, why not beer?

In the decision Molson Canada 2005 v Drummond Brewing Company Ltd., 2017 TMOB 78 (CanLII),  Molson opposed this trademark, and Drummond fought back, insisting that the mark was not descriptive. Numerous experts from both sides weighed in on the meaning of the term BEER BEER as a linguistic construction. One expert provided an opinion as a sociolinguist after  consulting scholarly literature, fellow linguists, and the Corpus of English Contrastive Focus Reduplications, a collection of 203 examples of naturally occurring utterances featuring contrastive reduplicative constructions, as published in the scholarly journal Natural language and Linguistic Theory (NLLT), 2004.

I’m not making this stuff up.

In the end, common-sense prevailed and the decision-maker found that the mark BEER BEER was clearly descriptive of the product. The mark was found to be unregistrable as a trademark.

Calgary – 07:00 MST