Fullers wins court battle over brand name rights

<editor's note>
A report by Roger Protz, from the Protz on Beer site, 
http://www.protzonbeer.com/documents/27660-001662.html
</editor's note>

Fullers wins court battle over brand name rights 29 Jan 2002 

Judge holds that ESB is not a generic term and is distinctive of Fullers

Fullers of West London, one of Britain's best-known regional brewers, has won 
a court battle to protect its rights to its flagship brand, ESB. 

The case was heard in the High Court in London, one of the most important 
non-criminal courts in England. It was between Fullers and Dave West, who 
trades as EastEnders in Calais, France. Mr West has exploited the gap between 
duty [tax] rates on beer in Britain and France by selling large amounts of 
cheap French beer to Britain in recent years. 

More recently, he has attempted to register the trademark for a lager labelled 
ESP in Britain. Fullers claimed that ESP and ESB (short for Extra Special Bitter) 
were too close for comfort, would confuse consumers, and infringed Fuller's 
rights to the term ESB. 

The argument put forward by Mr West's legal team was that ESB was not a brand 
name but a generic term or style. They cited several other brewers in Britain 
who had labelled beers ESB. 

Fullers called on two expert witnesses, beer writers Michael Jackson and Roger 
Protz, who said that in Britain ESB was linked powerfully in beer drinkers' 
minds with Fullers. Other beers called ESB or Extra Special Bitter had fallen 
by the wayside. 

Only one other regional brewer, Mitchells of Lancaster, had brewed an ESB with 
any presence in the market, they said, and Mitchells had withdrawn the beer in 
favor of a new brand called Lancaster Bomber. Mitchells went out of business in 
2000. 

In his ruling on 25 January, the judge held that ESB was not a generic term and 
was distinctive of Fullers. He expressly rejected the suggestion that ESB or 
Extra Specail Bitter designated a recognisable style of beer in Britain. 

Fullers had applied to register the brand name ESB in 1988 and the judge said 
that even if ESB had not been distinctive then, it had acquired distinctiveness 
through the use made of it by Fullers since that date. 

He also rejected the suggestion that the distinctiveness of Fuller's ESB should 
be limited to one part of Britain, the South-east region that includes London. 
He said the brand name was clearly of national renown, and he cited the many 
awards given to Fuller's ESB by the Campaign for Real Ale. 

Fuller's was unsuccessful in just one area: the judge ruled that the 
registration for ESB covered only bitter beers and not lager. Fuller's may 
appeal against this element of the judgement. 

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