Is “Steam” Trademark Lawsuit Just Hot Air?

Hartford’s historic Cheney building, home to the City Steam Café. The brewery is facing a lawsuit for trademark infringement from a California beer maker for use of the word “steam” on its bottled products. Public domain photo by Daderot.

A lawsuit filed in the U.S. federal district court in New Haven Jan. 27 by a California brewing company against a Hartford-based microbrewery hinges on whether the word “steam” is an inherently distinctive mark protected from infringement by trademark law.

The Anchor Brewing Company has had a federally registered trademark for a stylized version of the words “steam beer” since the late 1970’s. It claims that Connecticut's City Steam Brewery is stepping on its toes by shipping its own signature flavors with the “steam” moniker around New England and New York.

This is hardly Anchor's first attempt to stop other beer companies from using the term. It has even succeeded in changing beer classification names in its home state. But City Steam is the first that has been willing to go to court to fight back.

To understand the positions of both companies, it is necessary to understand the history of steam beer. The details of the name's origin are not entirely clear, but it developed in Northern California during the mid-1800's as an improvised method of open-air brewing where cooling systems were not yet available. It came to denote a process of brewing bottom-fermenting yeasts at higher than ordinary temperatures more appropriate for lager fermentation.

Steam beer would be unrecognizable to drinkers of Anchor's products today. Technological changes ended the old steam beer market long ago. When California brewers sought to mimic these flavors in the twentieth century, they produced much more refined, high-end beers.

Anchor, which already had its trademark on steam beer, cornered the use of the name in California. Today, brewers inspired by their steam beer forebears call their products “California Common Beer.”

The distinction between historic steam beer and Anchor's modern variety is instrumental to its trademark claims. If steam remained, as it was then, a purely descriptive part of the beer brewing, it would be difficult for Anchor to gain trademark privileges for the word. But today, one could argue that the word is arbitrary (it has no relation to the product to which it is attached) in reference to Anchor. This would make it inherently distinctive and therefore open to registration as a trademark.

An ancillary argument might be that the word “steam” has acquired a secondary meaning (another way to gain trademark recognition) over the many years that Anchor has been using it exclusively. Anchor Steam is distributed on a national scale, and has been around for about 30 years. This argument may be weaker however, because it is questionable whether an association between a particular flavor of beer and the word “steam” have become entrenched enough in the public mind to qualify.

In fact, this “secondary meaning” argument could actually be used by City Steam against Anchor Steam. Thomas Walsh of the blog “The Trademark Bar” points out that several names using the word “steam” in association with beer are on file with the USPTO, including “Fullsteam,” “Steamworks,” and “Steam Whistle.”

The issue becomes more complicated in considering the genesis of City Steam's name. In its case, “steam” has nothing to do with the historic Californian brewing method. It is, instead, a reference to the unique heating and cooling system provided to a section of Hartford by the Hartford Steam Company. City Steam is located in the nearby Cheney building, and worked with the steam company to run pipes through its cafe. Its 23-barrel brewery is powered by “city steam.”

The cafe, through ownership group Mountain Shippers, attempted in 2012 to register its own beer trademark with the U.S. Patent and Trademark Office under the name “City Steam.” Anchor opposed that effort, and sought a stay on the official determination while it pursues its trademark infringement case.

City Steam, for its part, asserts that Anchor cannot hold all rights to the word “steam” because it is descriptive. Under trademark law, purely descriptive terms are not eligible for trademark registration.

That argument, however, probably applies more accurately to “City Steam” (which does signal some descriptive function) than it does to “Anchor Steam.” By framing the question as one of whether steam describes an aspect of the beer, City Steam opens itself to the possibility that its own name is unfit for trademark registration. At the same time, Anchor is likely to point out that, for itself, “steam” is an historical reference, not at all descriptive of its modern fermenting practices.

Some legal experts think City Steam will likely lose. Candace Moon, a California attorney not connected to the case but who has experience representing beer makers, predicted in an interview with the Hartford Business Journal that City Steam would probably have to change the name on its bottled products – though perhaps not on its cafe.

Whatever the outcome, one of the parties in the case is bound to come away steaming.

Science Policies Can't Just Rest on Facts

Hurricane Sandy, shown here a day before landfall on Oct. 28, 2012, was one of the largest storms ever to hit the East Coast. Scientists pointed to the damage caused by the hurricane as one example of the problems climate change could exacerbate. NASA Earth Observatory image by Robert Simmon with data courtesy of the NASA/NOAA Geostationary Operational Environmental Satellite Project Science team.

Science and technology policies are based on some facts, but facts only account for a small proportion of the considerations that shape these policies. Reputation, money, politics and cultural perceptions all play major roles in determining which facts are pursued by scientists, as well as how those facts, once uncovered, are used by other groups.

Among scientists, reputations act as heuristic signals for colleagues. Reputations are built primarily through publications, awards, funding and other mechanisms that proceed from outside the laboratory.

Individual scientists may not always value these heuristic mechanisms as much as others. Percy W. Bridgman, for instance, ignored an interview request from the Associated Press about the announcement that he had won the Nobel Prize - so he could continue his experiments.[1]

But avoiding participation in the policy sphere is nearly impossible for most scientists. This was true even a century ago, when scientists and engineers in the electrical sciences, aeronautical sciences, and agricultural sciences wrestled with the effects of patents and industrial funding that threatened idealized notions of “pure science.” World wars I and II ramped up state support, thus giving many of the scientists what they had thought was independence.[2]

State patronage also comes with strings, however. David Edgerton points out that even during the heyday of science’s growth in the U.S. at the end of World War II, the vast majority of government sponsorship was for applied research with military goals.[3]

Edgerton says that if one “follows the money,” one quickly discovers that most science for most of history actually occurred in applied contexts, and almost always outstripped basic research in terms of funding, even if popular conceptions of science have not recognized this.[4]

Even where goals remained purely scientific, government-sponsored science faces political concerns that shape agendas. This became apparent to members of the meteorological community as they attempted to build a cooperative global infrastructure for exchanging weather data in the early twentieth century. The first incarnation of this effort, the International Meteorological Organization (IMO), was purely voluntary. To keep up with technological changes and to keep control of the standard-setting process, the IMO petitioned to become part of the U.N. Its establishment as an intergovernmental organization allowed it ultimately to expand its scope to become a truly globalized entity. But it also brought political and definitional challenges. It was forced, for instance, to create “observer” statuses for large states like China that were not at the time members of the U.N., instead of allowing them full inclusion in the coordination process.[5]

Politics and money can have profound influences on the arrangement of policies governing the practice of science. Despite these forces, scientists have been largely successful at uncovering facts within those research programs that have been funded, even when those facts have disagreed with the interests of industry or government. The question remains: how are these facts incorporated into new policies, if at all?

Global warming is perhaps the most striking recent example of the failure of facts effectively to inform political debate and policymaking in the U.S. Since the issue first exploded into public consciousness in the late 1980’s, industry-backed denial campaigns have sought to undermine public confidence in the science itself. Front groups for oil, gas and other fossil fuel companies have employed a small number of contrarian scientists to attack peer review and prestigious science organizations that recognize global warming, such as the National Academy of Sciences.[6]

Politicizing the issue has polarized the public. Gallup surveys showed that 49 percent of self-identified Republicans in 2001 believed the effects of global warming had already begun. By 2010, that had dropped to 29 percent. In the same period, the percentage of Democrats who believed global warming had begun rose from 60 percent to 70 percent.[7]

Public relations campaigns have also had a direct influence over perceptions of science among policymakers. Former Texas Republican Representative Tom Delay in 1995 dismissed the International Panel on Climate Change’s report without having read it, saying, “But it’s been my experience that . . . the conclusion is usually written before the study is even done.” Former California Republican Representative John Doolittle relied on a single think-tank-sponsored scientist, S. Fred Singer, to justify his denial of the peer-reviewed science supporting climate change.[8]

Public officials generally have neither the time nor expertise properly to weigh scientific issues – or on the credibility of a given institution’s work. They rely a great deal on lobbyists and think tanks to provide them with a bottom line. They also have cultural and political biases that influence their actions.

The Smithsonian's National Air and Space Museum is a prime example of the role that cultural concerns play when they intersect with scientific facts. Curators at the museum are constrained in what exhibits they can display by dominant historical narratives. Roger D. Launius offers 10 exhibits that he believes could be compelling, but would not be approved because of cultural sensitivities. Some of the considerations he cites as deal-breakers include images of crashes, death, and evoking Cold War fears.[9]

Science and technology policies must use facts in order to be effective. However, no policy can sustain itself without taking into account influences such as money, politics, and culture. The difference between the effective and the poor lays not in whether policies are free of these influences, but in how they are ultimately reconciled with the facts.

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[1] Gerald Holton, “Candor and Integrity in Science,” Syntheses 145 (2005), 277-294, http://www.jstor.org/stable/20118593, 11-13-13;

[2] Christine MacLeod, “Reluctant Entrepreneurs: Patents and State Patronage in New Technosciences, circa 1870-1930,” Isis 103 (2012), 328-339, http://www.jstor.org/stable/10.1086/666359, 11-13-13;

[3]           David Edgerton, “Time, Money, and History,” Isis 103 (2012), 316-327, http://www.jstor.org/stable/10.1086/666358, 11-13-13;

[4]           Ibid.;

[5]           Paul N. Edwards, “Meteorology as Infrastructural Globalism,” Osiris 21 (2006), 229-250, http://www.jstor.org/stable/10.1086/507143, 11-26-13;

[6]           Riley E. Dunlap and Aaron M. McCright, “The Climate Change Denial Campaign,” SSN Scholars Strategy Network, January 2013, http://www.scholarsstrategynetwork.org/sites/default/files/ssn_key_findings_dunlap_and_mccright_on_climate_change_denial.pdf, 11-26-13;

[7]           Aaron M. McCright and Riley E. Dunlap, “The Polarization of U.S. Public Opinion on Climate Change,” Scholars Strategy Network, January 2013, http://www.scholarsstrategynetwork.org/sites/default/files/ssn_key_findings_mccright_and_dunlap_on_political_polarization_on_climate_change.pdf,11-26-13;

[8] Myanna Lahsen, “Technocracy, Democracy, and U.S. Climate Politics: The need for Demarcations,” Science, Technology, & Human Values 30 (2005), 137-169,http://www.jstor.org/stable/1558016, 11-26-13;

[9] Roger D. Launius, “American Memory, Culture Wars, and the Challenge of Presenting Science and Technology in a National Museum,” The Public Historian, 29, 1 (Winter 2007), 13-30, http://www.jstor.org/stable/10.1525/tph.2007.29.1.13, 11-22-13.

Lessons from a Lockdown

 

A police vehicle blocks an entrance to the University of New Haven's parking lot during a Dec. 3 lockdown. Photo by Brandon T. Bisceglia.

A version of this op-ed was first published in the Connecticut Post on Dec. 12.

Although the shootings at Sandy Hook Elementary are undoubtedly on all our minds at this time of year, I never expected to have the situation those people experienced come as close to home as it did for me on a recent Tuesday.

Yet there I found myself, in a closet with my classmates at the University of New Haven after police werealerted to a Fairfield student making his way onto campus with a gun, merely ten days before the anniversary of that horrible attack.

We were fortunate: police responded swiftly, and there were no injuries. Fear and inconvenience is a small burden to bear compared to what could have been. We had plenty of time while we were in hiding to consider the full range of possibilities.

Most schools have adopted protocols for emergency lockdowns, and some practice them on a regular basis. Practice, though, has its limits. It cannot replicate the emotional turmoil of those first moments after the realization strikes: this is real.

My classes may have been canceled that day, but I learned some valuable lessons about the ways that our systems work to foster or undermine safety. Here are a few of those lessons:

- Don't Panic: It's the best advice anyone can give. Our classroom had glass walls and doors that provided little protection, so we had to take alternative action. Within a minute of receiving the alerts from UNH's emergency notification system, we had hidden our belongings, turned off the lights, and locked ourselves into a large closet inside the classroom. Our professor was swift and direct, and no one hesitated. If any of us had panicked, it would have delayed our retreat and broken up the group, possibly putting us in greater danger. We continued to watch out for and reassure one another throughout the afternoon.

- Be Vigilant: The woman who first called police is a hero, and became one by paying attention to her environment. One of my professors wondered aloud afterward whether someone walking down the street while staring at a smartphone or wearing ear buds might have been too ensconced in her encapsulated world to have noticed the gun. I wonder, too.

- Tech is Your Friend: Aside from the obvious advantage of the initial warnings from the notification system, many of us brought our phones with us when we filed into the closet, allowing us to follow Twitter feeds, local media, and updates from the university. We stayed connected even while isolated. Because of this, we found out when the suspect had been arrested and that the immediate danger had likely passed. We could make an informed decision to move back into the classroom while we waited for the "shelter in place" order to be lifted.

- Tech is Your Enemy: During the height of the crisis, someone on campus posted to Twitter saying exactly what room she was in. If I could read it, a potential shooter could as well. It can be tempting to talk about what's happening during an emergency, but you have to keep in mind that social media are public forums. Be careful about what you say.

- Policies Can Conflict: The day after the lockdown, one of my professors pointed out that some teachers have a policy requiring students to turn their phones off. "If everyone had turned everything off," he asked the class, "would we have known about the alerts?" The answer, of course, is no. Fortunately, few students actually follow "phones off" policies. What may seem to be a needless distraction at one moment can become a life-saving tool the next.

I learned all these things and more that Tuesday. I sincerely hope that no one who reads this will ever have to make use of these lessons. Unfortunately, the recent trend of school threats has tempered my hope with a pessimistic realism.