The Trademark Examiner that reviewed Martin City's application found no existing marks that would bar registration of Hard Way IPA, so on August 11th, the application was published in the Federal Register for opposition. This publication gives anyone who believes that they would be harmed by the registration of the mark 30 days to file either an opposition to the registration or a request for extension of time to file an opposition. On September 10th, the last day of the opposition period, Anheuser-Busch filed a request for an extension of time to file an opposition.
Anheuser-Busch has already taken a great deal of flack over the Super Bowl ad, which was fairly insulting to the craft beer industry and craft beer consumers, mockingly saying to "let them have their pumpkin peach ale." Some hoped that when Martin City beat them to the punch for registering a "Hard Way" trademark, that Anheuser-Busch would simply let it go. Clearly that is not going to happen; they are going to take on the "little guy" and try to bully him out of his trademark.
This move was telegraphed on August 28th, when Anheuser-Busch amended its own trademark application to change it from an "intent to use" application to an "actual use" application. What does this mean? Well, before your trademark can be registered by the USPTO, you must be actually using the mark in interstate commerce. But, you can file your application before you actually use it by telling the USPTO that you intend to use it. Then, if the USPTO says that your mark is allowed, you have a certain amount of time to put the mark into actual use and then it will be registered.
What's interesting here is that the Super Bowl ad aired on February 1st, but when Anheuser-Busch filed their trademark application on February 6th, they filed it as an Intent to Use application, meaning that they were not already using the mark in commerce. This part isn't surprising, the Super Bowl ad used a lot of different phrases ("Proudly a Macro Beer," "Not Brewed to be Fussed Over," "Brewed for a Crisp Smooth Finish," "This is the Only Beer Beechwood Aged Since 1876," "Brewed for Drinking Not Dissecting," "The People Who Drink Our Beer Are People Who Like Beer Brewed the Hard Way," "Let Them Sip Their Pumpkin Peach Ale"). When the ad aired, the reaction to the "Brewed the Hard Way" line was strong and immediate, so it seemed that by filing their trademark application a few days later, Anheuser-Busch was simply latching on to a phrase that struck a nerve.
But, now Anheuser-Busch is saying that they not only intended to use "Brewed the Hard Way" as a trademark all along, but that they in fact were doing so as of February 1st. The most interesting part about this is that the support for their claim of using the phrase as a trademark was not the Super Bowl ad. As noted above, that ad had so many catch-phrases in it that it would have been tough to argue that any one of them was being used as a trademark. Rather, Anheuser-Busch has provided the USPTO with two pictures that purportedly show "A Point of Sale Display at a Retail Location."
However, these pictures do not provide any information about either their location or the date that they were taken, and neither does the submission that Anheuser-Busch provided to the USPTO. It will be interesting to see whether the sign in these pictures was actually in use as of February 1st or whether they are samples of how Anheuser-Busch is using the mark now and they are actually relying on the Super Bowl ad for the February 1st date.
Having filed for an extension, Anheuser-Busch now has another 30 days to file their opposition to Martin City's "Hard Way IPA" mark. They could also file for another extension of an additional 60 days upon a showing of good cause and could even extend another 60 days beyond that upon a showing of extraordinary circumstances. Regardless of when they file their opposition, this process will significantly delay Martin City's registration and dramatically increase the cost to a small brewer.