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Beerman' Trademark Claim Goes Flat

"Bob the Beerman," who sells refreshments at Colorado Rockies baseball games, has lost his claim that he had a trademark in the name and that Coors Brewing Co. infringed the mark.

The Rockies hired Robert Donchez — aka "Bob the Beerman" — as a beer vendor in 1993. Donchez created the outspoken character to entertain the crowds. As his popularity grew, Donchez branched out and sold beer at other sporting events and registered "Bob the Beerman" as a service mark — a word or words used to distinguish the services of one person from the services of others.

While he was working for the Rockies, Donchez was encouraged by a Coors employee to see if the brewery would be interested in developing a promotional theme based on "Bob the Beerman."

Donchez met with Coors representatives in January 1996, but the parties never entered into a contract.

In April 1997 Coors began a television advertising campaign featuring different actors portraying beer vendors. The script for the ads included interactions with customers who called the vendors "beerman" or "beerstud."

Donchez filed a federal suit in the District of Colorado against Coors in 1999 for service mark infringement, violation of the common-law right of publicity — the right to control one's own likeness — and unfair competition.

The court granted Coors' motion for summary judgment on all counts, and Donchez appealed to the U.S. Court of Appeals for the 10th Circuit.

The appellate court observed that Coors never used the term "Bob the Beerman" in its advertising, so the court addressed how to classify the term "beerman" to determine if it was protectable.

A generic mark is not entitled to protection, but descriptive marks may be protected if they have acquired a secondary meaning in the public's view — that is, if the public associates the mark with a specific source or origin.

Donchez asserted that the "beerman" mark was descriptive and had become associated with him when used in the context of promotional and entertainment services.

In support of his argument, he offered evidence that Coors itself had tried to register the mark as a trademark and that dictionaries do not include definitions of the term.

The court was not persuaded. First, the court observed that Coors had sought to trademark the term only in connection with a line of clothing and in that context the term was something other than generic or descriptive.

As to the dictionary definition, the 10th Circuit agreed with Coors' argument that the "beerman" term was merely a composite of two generic words and was nothing more than the sum of its parts.

The 10th Circuit concluded that the District Court properly granted Coors' motion for summary judgment on the service mark claims.

The appeals court also rejected Donchez's claim of violation of his right of publicity, a cause of action intended to protect celebrities from injury to the commercial value of their identities.

The panel said Donchez presented no evidence that he, as opposed to "Bob the Beerman," was a celebrity, and there was no evidence that his own persona had any commercial value.

Donchez was represented by A. Bruce Jones, Craig M.J. Alley and Nicholas M. Billings of Holland & Hart in Denver.Coors was represented by K. Preston Oade Jr., Richard L. Gabriel and Michael J. Hoffman of Holme Roberts & Owen in Denver.