Not sure what is on the menu at the Cannibal restaurant but I can only assume its people who didn’t have enough money to pay their bill the night before. A brewery and restaurant cooked up a fight at the Trademark Office but only once came out unbitten.

On July 2, 2015, Iron Hill Brewery, LLC. filed to trademark its golden, Belgian-style ale, “The Cannibal” for use in connection with beer. The trademark examination attorney refused to register the mark due to the same, already registered mark by The Cannibal Beer & Butcher, used in connection with restaurant services on August 20, 2013.

Image of Cannibal Beer

The logos themselves do not look very similar, but the problem lies within the words THE CANNIBAL and the similarity of the goods/services offered ­by Iron Hill Brewery and The Cannibal Beer & Butcher. The Cannibal Beer & Butcher is a butchery and gastropub, offering a mostly meat menu with a vast variety of craft beers. Iron Hill Brewery and Restaurant is a brewery that serves hand-crafted beers, spirits, wines, and appetizers.

Although the Iron Hill Brewery and The Cannibal Beer & Butcher both classify their marks differently (beer and restaurant services respectively), it is easy to see where the confusion lies when both places offer food and beer.

However, the refusal of the mark was reversed because the requirement that “something more than that the identical marks are used for food products and for restaurant services” was not shown. According to the Trademark Trial and Appeal Board, just because a single mark “is sometimes used to identify restaurant services and beer, that some restaurants are associated with breweries, and that restaurants may sell beer,” this alone is not sufficient enough to establish a relationship between restaurant services in general and beer.

In other words, because both The Cannibal Beer & Butchery and Iron Hill Brewery feature beer, Iron Hill in particular specializes in manufacturing and selling beer, and thus, its brand of beer THE CANNIBAL would not be easily confused as an extension of The Cannibal Beer & Butchery, especially because The Cannibal Beer & Butchery does not manufacture nor sell THE CANNIBAL brand beer.

So the brewery will be allowed to register this mark but this doesn’t stop the restaurant from using the name, or even filing a lawsuit for trademark infringement. Anyone for dessert?

Author and M/L intern, Diana Qiao is a rising 2L at Northern Illinois University School of Law. Diana primarily studies intellectual property and entertainment law, focusing on video game and entertainment law.