American Beerworks, LLC is facing an opposition in response to their attempt to register the mark RADEGAST for use in beer by the estate of J.R.R. Tolkien of The Lord of the Rings fame.

While the trademark application for RADEGAST was filed by a company named American Beerworks, LLC, that is not the name of the brewery touting its Radegast beer. American Beerworks also owns the mark for NEW REALM BREWING CO and by no coincidence, New Realm Brewing Company is a brewery and restaurant located in Atlanta, Georgia. There, you can find the RADEGAST branded triple IPA.

If the name doesn’t sound familiar to you, it’s possible that you’ve never been forced (or nerdy enough) to sit through a marathon of Lord of the Rings and The Hobbit. Radagast the Brown was one of the five Wizard in Middle Earth. If you don’t remember him off of the top of your head, try to recall Sylvester McCoy’s interpretation of the old, dirty man with the animal friends in The Hobbit.

Regardless of whether you’re familiar enough with The Lord of the Rings to recall Radagast the Wizard, the Saul Zaentz Company is on the quest to stop American Beerworks LLC’s infringement. The Saul Zaentz Company is well-known for its efforts in policing and putting a stop to marks that come through the USPTO resembling the names of characters or playing on the lore of Lord of the Rings.

In the first few months of 2018 alone, the Saul Zaentz Company has filed oppositions or prepared to file oppositions against marks such as RIWENDELL (for use in cookware and kitchen appliances), RIVENDALE FARMS (for use in coffee mugs, apparel, agriculture, and food), MOON BY 1-RING (for use in camera-based technologies), and OAKSHIELD FINANCIAL GROUP (for use in investment services).

Naturally, the Saul Zaentz Company came to defend its most nature-wise Wizard, Radagast, against the RADEGAST mark application filed by American Beerworks. On February 27, 2018, it filed its official opposition against the RADEGAST mark with the USPTO.

The Saul Zaentz Company cited the various RADAGAST marks it has registered, including RADAGAST for use in video games, mugs, tote bags, t-shirts, trading cards, toys, and more. It also noted that is in fact owns various marks that are registered on beer, such as the GANDALF mark, the THE HOBBIT mark, and the SMAUG mark. It even owns the GREEN DRAGON mark for use in beer.

In addition to the Saul Zaentz Company’s various realms of ownership over the RADAGAST mark, it also made another convincing argument: it’s successful licensing program. Because of the fame and popularity of The Hobbit and Lord of the Rings, it has a strong trademark licensing program which enables consumers to confidently purchase Lord of the Rings and The Hobbit branded products with the knowledge that it has been approved or authorized by the trademark owner itself (and is not just a bootleg.)

This isn’t the first time American Beerworks LLC has faced an opposition at the USPTO. In August 2017, American Beerworks LLC attempted to register the mark JUST SOUTH OF NORMAL for use in beer. Three Floyds Brewing Company LLC filed an opposition, claiming that its pre-existing mark, IT’S NOT NORMAL (utilized in beer), would cause consumer confusion. While American Beerworks LLC submitted an answer denying the allegations,  it ended up abandoning the JUST SOUTH OF NORMAL mark following USPTO proceedings

Even if RADEGAST and RADAGAST don’t look the same due to the difference in spelling, the USPTO only needs a similarity of sight, sound, or appearance to strengthen the likelihood of consumer confusion. We won’t know for certain until (and if) American Beerworks LLC files an answer. For now, you can still go to the New Realm Brewing Company’s website to check out their RADEGAST branded brew. Drinkers on the Untappd beer-rating app seem to be big fans.
Do you think that this opposition is over-the-top? Should the Saul Zaentz Company be able to achieve trademark registration for the name of this relatively minor character in the Lord of the Rings lore?

Author, Caroline Womack, is a 2L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.