Controversy brewing over Vandal beer

Vandal Beer founder Austin Nielsen will launch production at his Hayden brewery today.

Although local beer lovers have yet to guzzle the first growlers of Vandal, the startup already has experienced some trouble.

The University of Idaho sent Nielsen a demand letter earlier this summer alleging the enterprise constituted an infringement on its trademark of the word “vandal.” Nielsen met with his company’s legal counsel after receiving the letter to draft a response:

That will be made available in the near future, Nielsen said.

“Vandal Beer LLC has not infringed on any proprietary rights owned by the University of Idaho. In addition, there is no valid claim for trademark infringement or dilution,” Nielsen said via email. “Vandal Beer is hopeful to come to a working agreement with the University to continue production of its beer amicably. We look forward to reaching a peaceful resolution that would be advantageous to all parties.”

The university has not responded to Nielsen’s letter. Communications director Jodi Walker said the university was not aware Nielsen would be moving forward with production.

University officials declined Nielsen’s request to use the word “vandal” when he proposed the Vandal Beer concept as a student.

The State Board of Education is the Board of Regents and, as such, is the governing body of the University of Idaho. It can set policies and rules as to how the university’s trademarks may be used, Walker said. After Nielsen left the university, the university officials thought the idea left with him. So any conversation about licensing the use of the Vandal trademark with regard to beer never moved to the State Board of Education. When the university was later informed about Nielsen’s plan to use the vandal name for a beer, it did not want to move forward with the process to allow the trademark’s use.

Nielsen said he was unsure why the university had chosen to not accept his company’s name and use of the word vandal.

“Several other businesses continue to sell Vandal-branded goods in different trade channels. In fact, when you look up the word “vandal” in a trademark search, there are hundreds of listings,” Nielsen said. “There is nothing negative that will come out of Vandal Beer’s existence.”

The University of Idaho registered for a trademark on its Vandal mascot a little more than three years ago, on April 26, 2016. The federal government granted the university the official trademark on July 12, 2016. Before filing paperwork with regulators in Washington, the university protected the Vandal name under rights afforded it by common law.

Trademarks typically protect logos and brand names. A company or individual can establish a common law right to a mark simply by using it in commerce, without the need to register it with the federal government.

To register a trademark, a person or corporation files an application with the United States Patent and Trademark Office. It assigns the application to a lawyer, who checks if the word or phrase legally can be trademarked. Some words can’t be: Generic terms, for instance, can’t be protected by trademark because they already are in use. And the law recognized that language evolves. The term “flip-phone” was once a Motorola trademark. It lost its protection as its use became commonplace. This is why brands like Kleenex, Styrofoam and Realtor insist that their trademarks be capitalized — to avoid becoming an unprotectable generic term.

Once the trademark lawyer approves the trademark, it is posted to the Official Gazette, the patent’s office journal. The proposed trademark sits on the Gazette for a month, allowing others an opportunity to protest the trademark. If the word or phrase goes unprotested, it’s granted official, federally protected trademark rights.

The University of Idaho Trademark and Licensing Department is responsible for the oversight of the trademark. The university hired a single employee to protect the trademark and oversee its use. The university has similar mascot-related trademarks, including Idaho Vandals, Vandals, Vandalstore and Vandal Brand Meats.

?The trademarks generate licensing revenue for the university. Nielsen’s plan was to donate a portion of sales to the school to be used as scholarship funds, though he has not agreed to license the trademark officially and pay royalties.

If Nielsen continues with the brand name, the university will review its options.

“Our legal counsel will meet with his legal counsel and that is how we will move forward,” Walker said.

Pre-orders for Vandal Beer are now available through the company’s website, Vandal.beer. Retailers wanting to carry Vandal Beer can contact Nielsen through the website’s ‘contact us’ page.