August 2019

Shortly before sunrise earlier this summer I drove from Sauget, Illinois back to my home in St. Louis. My route took me north on Illinois Route 3 and then west over The Mississippi on The Poplar Street Bridge. As some alert readers (ARs) with an interest in history might already know, I was crossing a border that had been established by The Treaty of Paris in 1763. For the benefit of ARs who may have forgotten this historical factoid , The Treaty of Paris formally ended what Americans call The French and Indian War and Europeans call The Seven Years’ War. Among this treaty’s many provisions was one that awarded French territory east of the Mississippi to Great Britain; and French territory west of the Mississippi to Spain. In other words, the river became a border where none had previously existed. Although all of the land in question is now part of The United States, the border established by the treaty remains, separating Missouri and Illinois.

For many ARs Sauget may be best known for artistic performances that test the limits of the First Amendment to the United States Constitution. What some patrons of the performing arts venues in Sauget appreciate as constitutionally protected free expression, some critics denounce as lewd and obscene. Finding the line between protected speech and obscenity is a challenge that has bedeviled The United States Supreme Court for as long as I can remember and will likely continue to do so.

Exotic dance isn’t the only battleground where The Supreme Court has been called on to resolve competing arguments about free expression and obscenity. There’s also trademark law, specifically a case involving a line of clothing called Friends U Can’t Trust aka F.U.C.T. Eight years ago the Los Angeles company that produces the clothing applied for a federal trademark for this name. The United States Patent and Trademark Office denied the application because of a federal law that forbade the registration of trademarks that are scandalous, disgraceful, offensive or disreputable. Earlier this summer The Supreme Court ruled in favor of the clothing company, striking down the law in question.

While many serious issues of constitutional law were involved in the F.U.C.T. case, the same cannot be said of another trademark dispute that was finally concluded around the same time. I’m referring to the case brought by the late Phyllis Schlafly and her sons against Schlafly Beer. Like the French and Indian War, this case dragged on for seven years. It involved an endless series of frivolous claims that were rejected by every tribunal that considered them. Among them:

A surname can’t be trademarked.
The name Schlafly refers “uniquely and unmistakably” to Phyllis
Although hundreds of millions of servings of Schlafly have been consumed over the years, the name has not achieved recognition with respect to beer.
The federal trademark law is unconstitutional for unspecified reasons.

Our seven years’ war over the trademark finally came to a conclusion on May 28th. As Yogi Berra famously said, “It ain’t over ‘til it’s over.” Yogi was right. There were plenty of times along the way when we thought the battle was over, basically after every frivolous appeal was denied. As was reported in this space a while ago, even after the Federal Court of Appeals for District of Columbia ruled in our favor, one of Phyllis’s sons was quoted as saying he was taking the case to the Supreme Court. He didn’t. At that point we thought we would soon receive the trademark for which we had applied in 2011. We didn’t because the federal government was shut down.

It wasn’t until late May, more than six months after the decision by the Court of Appeals, that we finally got the trademark that should have been issued as a routine matter back in 2012, which was when Phyllis and her sons filed their frivolous opposition that ended up costing us hundreds of thousands of dollars and thousands of hours of wasted employee time.

Coincidentally, our trademark battle began around the time I purchased my interest in The St. Louis Blues. Interesting that it took just as long for the brewery to rid itself of a frivolous lawsuit as it did to transform the Blues into Stanley Cup Champions.

Which brings me back to what I was doing in Sauget shortly before dawn. In case some ARs were wondering, at 5:00 a.m. on June 13 I was on my way home from The St. Louis Downtown Airport in Cahokia. Along with other team owners and members of players’ families, my wife and I had just landed on a charter flight from Boston, where we had watched the Blues win their first Stanley Cup in franchise history. Their performance on the ice was far more spectacular and memorable than anything ever seen on the stages in Sauget.

 

Tom Schlafly

Chairman – The Saint Louis Brewery

[/vc_row