Monthly Archives: May 2013

BBQ Joint Follow Up: PM BBQ

When you have solid BBQ, a return trip is in order. PM BBQ boasted championship chicken, but I got the brisket last time. I want that chicken.

1/2 chicken and all the fixin's

1/2 chicken and all the fixin’s

What great chicken! Half a bird, well smoked. The skin was barely crispy and peeled back easily, revealing uber-moist and succulent meat. It was well-flavored and the smoke came through wonderfully. My dad got the same thing and we didn’t put a drop of BBQ sauce on it. It was that good.

I’ve smoked chicken before with success. It usually turns out really good and everyone likes it, but mine is not this good. The white meat and the dark were evenly moist and tender, and that includes the wings. Every time I cook a chicken on the Weber, the wings get dry. I really don’t know how they did such a great job – this chicken shows great skill.

I was told by someone in the know that I made the mistake last time of not getting the sweet corn spoonbread side. It was good, but a little dense. The beans were much better. The slaw was a basic light cream slaw – nothing amazing but not bad. It pairs well with chicken.

We also split the small order (that’s a small? does the large come in a bucket?!) of fried pickle chips. I can’t put my finger on it, but it’s a batter I’ve definitely had before. They were a good treat to split.

The chicken is worth a return trip, as is the brisket. PM BBQ is a solid BBQ Joint option.

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Dingbats Aren’t Just Bud Light Drinkers

Yet another post that has nothing to do with BBQ and is only tangentially related to the substance of beer, though two breweries are involved. Keep scrolling, Mr. Chug-A-Lug or Ms. Brisket Lover. This isn’t the blog entry for you.

When I’m not loading my body with the poisons of alcohol and cholesterol, I pay bills as an Intellectual Property attorney. That means that before continuing, it’s time for the Disclaimer: In case you didn’t already know, nothing here is legal advice. Don’t rely on anything here as legal advice. Remember that seeking legal advice from a BBQ & beer blog = You fail at life.

A friend shared an article on Facebook about a lawsuit filed by fairly well known brewer Magic Hat against relative newcomer West Sixth Brewing Co., out of Lexington, KY. Intrigued by craft breweries in litigation, I clicked. Turns out Magic Hat, owner of the #9 trademark and current applicant for the #9 design registration for their #9 beer, took exception to the West Sixth logo.

Look for yourself.

This is the federal mark that Magic Hat filed with the US Patent & Trademark Office (image from the USPTO TESS database):

#9 is divine

#9 is divine

It doesn’t come in black & white on the shelf. Here is a pic from an early Drink This Beer from this very blog:

Drink this beer

Drink this beer

And, here is the West Sixth logo that caused all the hubbub (image from the currently-overwhelmed by traffic westsixth.com, via Google images):

It's a 6, you dingbat!

It’s a 6, you dingbat!

Factoid of the day: That little eight pointed star is called a dingbat. Frankly, I think it’s an important part of this case for reasons I’ll explain.

Taking the very, very 10,000 foot view on this issue, the case comes down to customer confusion between these two marks. There’s a series of factors involved, but that’s it. Are you confused? Would you ever buy West Sixth thinking you were buying Magic Hat #9?

As for me, the answer is no. Every case is subjective, but I (1) read labels, and (2) like to think that I know at least a little more than the average beer drinker.

More specifically, there are well-known factors that courts use to determine when a trademark is infringed. For guidance, let’s look to Harvard Law, who wouldn’t touch my undergraduate transcript with a ten foot cattle prod:

“The standard is “likelihood of confusion.” To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant’s intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).”

In plain English, the Court will evaluate these and other factors to determine if West Sixth is on the hook for infringement liability. Here’s my take on each:

Strength of the Mark – Magic Hat has two trademarks here. The first is the #9, which has been around so long that it’s literally considered incontestable, and for which Magic Hat has a federal registration. The second is the #9 design shown above, minus the color scheme (which is part of the trade dress, not necessarily the trademark… just stick with me here). The second one is merely a registration but has been on file for a few years and I consider it to be a logo that I know on sight. I’d award this point to Magic Hat. It’s not the Budweiser or High Life logo, but it’s a fairly well known mark in its own right.

Proximity of the Goods – Both are beers, both available in Kentucky (the locale of the Federal District Court where this case was filed). Easily a point for Magic Hat.

Similarity of the Marks – A 6 is not necessarily a 9; My kindergarten-aged daughter can tell you that. But, 180 degrees is all that separates the two, and they appear to be in similar if not the same font. The Magic Hat mark has much more in the way of design elements, and the sizing / location of the numbers with respect to the overall logo isn’t the same. There’s also no # in the West Sixth mark. With only these facts I’d be inclined to lean towards West Sixth.

Here is my hangup: The Dingbat. I can’t imagine that many beers have this unique eight point star shape on their beer label. Indeed, none come to mind. It’s right there in the loop of the 9 and next to the upper half of the 6. Yes, the eight points on #9 seem similar, as opposed to the elongated N, S, E & W points on the 6, but it seems like a pretty wild coincidence that you’d have this shape in both labels. I think there’s a chance that a reasonable judge or perhaps jury might award this point to Magic Hat as well. This is very hard to predict.

Evidence of Actual Confusion – I can’t imagine there’s any. West Sixth is a purely local beer, and any Kentucky buyer isn’t going to pick up West Sixth on accident while looking for Magic Hat. We might have a case of reverse confusion, however, where a KY buyer purchases #9 on accident. This one is probably awarded to West Sixth, and is a draw at worst for them.

Similarity of Marketing Channels Used – I can’t comment on this except that the lawsuit alleges that the same distributors may be shuffling this beer around stores. That means they could be on the same shelves in the same parts of the beer aisles at the local grocer. Point to Magic Hat.

Degree of Caution Exercised by Typical Purchaser – This could turn into a powerful point for West Sixth. What is a typical purchaser? If you believe that the typical beer buyer is a moron, you’d be right. Bud Light and other mass-produced scuzbrew dominates both the bestselling beer list as well as the worst beers in the world list. The degree of caution is limited by (1) what’s on sale, (2) what’s on the aisle end cap and saves me some extra walkin’, and (3) what gets me good n’ drunk?

But what about the typical craft beer buyer? That guy who is in the minority of beer buyers who is looking specifically for hand-crafted beer, someone who eschews the watery dreck of Super Bowl ads… what is his level of caution? I’d say it’s pretty high. That guy, the guy in Kentucky who is looking for local craft beer will not pick up Magic Hat #9 on accident. He or she knows brands, knows beer styles, understands hops, can tell you what IPA stands for. That customer is not going to be confused, and that’s ultimately what would I emphasize if I were West Sixth’s counsel in this case. The degree of caution for a typical craft beer purchaser is very high. Point to West Sixth because I’m proud of that distinction.

Defendant’s Intent – I am inclined to believe that West Sixth, a local brewer in Kentucky wasn’t looking to trade off the goodwill of a far more established New England brewer. Did the graphic design guy who did their logo draw inspiration from #9? Maybe, but who can say. I give this one to West Sixth.

CONCLUSION – I’m not a judge and I’ve never been on a TM jury. That Polaroid case may not even be good law anymore. Hell, I’m drinking beer right now (FYI, O’Fallon Kite Tail)! I can tell you this case passes the smile test and Magic Hat may have tried to resolve this without litigation. To file this case, they had to come down to Kentucky. They are going to get some bad press from craft beer lovers, as well as people who look at the logos and think they look nothing alike. This isn’t quite at the scale of Budějovický Budvar vs. Anheuser-Busch (now AB/InBev), but it’s still a relevant dispute in my areas of expertise (IP & Beer).

I’m going to barely side with West Sixth because I don’t see (and can’t imagine) any actual confusion has taken place. I also believe that the craft beer drinker is a man or woman of discriminating tastes who knows what he or she is buying. Litigation is a total crapshoot, so this could turn out totally differently.

(Note to nitpicking lawyers reading this: Yes, I know there is a trade dress claim, state claims, etc. My readership is barely literate and probably came here trying to learn about 55 gallon drum smokers, parboiling ribs, or some other nonsense. This is over-simple, and probably not 100% accurate. Thanks in advance for being kind if you choose to comment.)

My final thought on this is that, even though being sued sucks and is expensive, I have a feeling that this is going to be one of the best things to ever happen to West Sixth. I had never heard of them until today, and I imagine the same can be said for thousands of others who read this or a similar article. This isn’t bad press, it’s a mountain of sympathy press that can be spun as the big out of town brewery coming into Kentucky to push around a little guy… a little guy who sells beer you may want to try.

Updated May 22, 2013: Although I had seen the social media campaign yesterday from West Sixth, only today I came across Magic Hat’s response (other than the lawsuit, which is a pretty powerful response in and of itself), via Magic Hat’s Twitter account. I’m posting both in the interest of fairness. I’ll even link to the Reddit thread.

Updated (Again!) May 22, 2013: The plot thickens! West Sixth isn’t backing down and fired back at Magic Hat. This has gone from interesting to compelling. I’m curious what’s next.

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I Eat Salads

If the title of this post isn’t a giveaway, I like greens mixed with stuff and dressing. While at Dave & Busters for a business lunch, I saw the ridiculously-named salad: The Lawnmower.

Note the fork for scale

Note the fork for scale

The waiter told us that he’d only seen two people eat the entire monstrosity. After me, it was three.

Why post this salad nonsense on my BBQ & Beer blog? I mentioned that I had eaten the largest single-serving salad I’d ever seen and was ridiculed by friends. They dared me to post and here we are. It was friggin’ delicious.

After I got home, I cracked open an impulse beer from a favorite brewery: Le Freak by Green Flash. It was amazing, and might have earned a spot in my beer Top 20 list.

C'est chic! (Sorry, Christopher)

C’est chic! (Sorry, Christopher)

Coming in over 9% ABV, this Big Beer packed a whallop, but it was very tasty and drinkable. Worth another buy for sure.

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Drink This Beer: 4 Hands Chocolate Milk Stout

What surprise awaited me at my in-laws’ in their garage fridge but an intriguing Big Beer that some careless brother-in-law had left behind. Behold the 4 Hands Chocolate Milk Stout.

MOO!

MOO!

As a lover of chocolate milk and beer I didn’t pay for, what was there to lose? Time to crack this bossie and pour.

Not my glassware

Not my glassware

The smell of the beer in the bottle is pure stout without much of a hint of chocolate. When poured into the rising body of the beer, I was met with a thick lustrous head. As the beer breathed, the head settled into a thicker-than-Guiness landscape of froth.

Looking at the beer, it’s 100% non-translucent. The rich dark color shows it’s brownness only at the edges of the curvature of the bottom of the beer glass. The aroma once poured has traveled from stout to chocolatey stout.

Drinking this beer, it’s kind of luxurious. There’s a definite chocolate finish, but it’s purely dark chocolate with zero sweetness. Rather than competing with it, the chocolate flavors complement the strong toasted malt stout flavors.

Texturally, I’m really wowed. There’s almost a true milky sensation of the beer rolling around in the back of my mouth, though it’s definitely a beer. At a mere 5.5%, I could easily handle the Big Beer.

Perfect pairing

Perfect pairing

Unfortunately the beer doesn’t suggest pairing with ice cream, except perhaps chocolate ice cream? Could this be the perfect ice cream float beer? (Unfortunately my in-laws had no ice cream but for some rainbow sherbert… that would have been disgusting.) I was between meals, so no beef either.

How about pairing it with a Cardinals shellacking of the Brewers?

Pow. Down goes Bernie!

Pow. Down goes Bernie!

Super smooth. Easy to drink. Great flavors that are well-balanced. Nice job.

My applause to the people at 4 Hands. They know what they’re doing in dessert beers for sure. I’m always looking for more local beers, and 4 Hands is on my radar going forward. My recommendation for this decadent dessert of a brew: Drink This Beer

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Smoked Cod Tacos

Cold and raining?! Ain’t got no time for that. It’s taco night.

A little crapola weather can't keep me down

A little crapola weather can’t keep me down

It doesn’t have to be a Friday in Lent to enjoy fish at the end of the work week.

Fish tacos are quick and easy. Clean flavors, loaded with lean protein, and widely-appealing.

I put a couple cod filets from Schnuck’s on a water-soaked cedar plank, and gave each a sprinkle of Lawry’s Seasoned Salt and a light dusting of Old El Paso Taco Seasoning Mix.

Alaskan Cod makes good tacos

Alaskan Cod makes good tacos

By “light dusting” I really meant light dusting. That taco mix can be overpowering, and I want to taste the fish and the smoke. The taco mix is really meant to be a complement to the taco theme of the meal.

Instead of quickly cooking the fish by using the plank to steam and smoke the fish, I am going to let the cedar plank provide a clean platform for cooking and only some moderate smokiness. I have in the past put planked fish over semi-direct heat and let the plank char. Not this time.

How are smoked jalapenos? I guess I'll find out.

How are smoked jalapenos? I guess I’ll find out.

Instead, I offset the fish to completely indirect cooking and put a few chunks of dry mesquite wood on the coals.

After about 45 minutes, the fish was done and looked pretty amazing.

Smoke color looks great!

Smoke color looks great!

For service, I warmed some flour tortillas and made small 5 bite tacos out of the fish, along with some black beans, taco cheese, cilantro, light sour cream, and some amazingly awesome Frontera tomatillo salsa. Finish with 1/8 lime drizzled over the plate.

To warm but not toast the tortillas, I just tossed some foil over the fire and quickly flipped them around until each was ready. I just stacked them up and wrapped the pile in that same foil until service.

They taste as good as they look

They taste as good as they look

These were spectacular and the entire thing took less than an hour from start to mouth. The rich smokiness of the wood melded with the flaky fish. Cod can be oily and dry, but these morsels were far from it. Amazingly delicious.

Next time, I’ll pass on the black beans because their flavor rose up a little more than I wanted to interrupt the fish. One decent-sized filet made three heaping tacos.

Simple, easy, tasty: Three things that make this dish a winner.

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