Don't Drink The Magazine

written by Greg Campbell

What does one of Boulder's most popular microbrewed beers have in common with one of the nation's most popular women's fashion magazines? Absolutely nothing, except the fact that up until a short time ago they both shared the same name: Elle.

But even that similarity was tenuous: Elle's Brown Ale, brewed and bottled by the Avery Brewing Company, was pronounced "Elli," for the 4-year old chocolate Labrador retriever owned by the brewery's president, Adam Avery. Elle Magazine is named for the French word for woman and is pronounced just like the 12th letter of the alphabet. Higher powers at the magazine, however, saw the situation as cut~and~dried trademark infringement, and late last year they took measures to guarantee that there would be no confusing the two products. Avery was ordered to stop using "Elle" on any products or advertisements lest they be dealt a lawsuit on the matter.

In a letter from Kuhn and Muller Law Of fices in New York City, the legal firm representing the magazine, it was explained to the brewery that "your use of ELLE for an alcoholic beverage would result in a likelihood of confusion as to the source, origin or sponsorship of your company's product ... and constitutes a famishment of the mark by associating it with alcoholic beverages and is likely to adversely affect our client's valuable rights."

The letter was received at Avery with disbelief and humored indignation.

"We couldn't believe it," says Chief Executive Officer Larry Avery. "We thought it was a ridiculous assertion, that people would think they (Elle) were making the beer."

Indeed, the two products are worlds apart, or so one would think. The beer is a nutty, medium-bodied ale packaged in a long brown bottle with a brown and yellow label proudly featuring Elle herself and bearing no resemblance to the perfumed glossy magazine that showcases an average of five pounds of advertisements for the fashion industry a month.

Attorneys for the brewery quickly dispatched a response in which, for the record, the differences between the two products were outlined in detail. As stated in the letter, "the term 'Elle's the ABC mark is the name of Mr. Avery's chocolate Labrador retriever ... and the term 'Elle' is used only in conjunction with the additional words 'brown ale,' and only in conjunction with the picture of Elle's head, thus making ABC's mark readily and easily distinguishable from that of your client."

A quick call to the magazine's legal firm to try and get an idea of the number of the magazine's readers who had confused it with the brewery yielded little information.

"We have nothing to discuss about the past," says Perla M. Kuhn, attorney for the magazine, after a long pause.

"In truth, I was too busy to get mad about it (the lawsuit)," says Adam Avery, "I have four employees here. Who's going to deal with that? Nobody."

Avery Brewing Company has been making Ellie's Brown Ale for a little over a year now. Like all of Avery's products, the beer was designed to appeal not only to the tastes of the beer's drinkers but also to their lifestyles: Elle's is for dog-lovers; Redpoint Ale is for the climbers in the community; Out of Bounds Stout is a hearty brew for skier and snowboarders; 14er Extra Special Bitter is for peak-baggers; and Razzy Wheat Ale is for... well, everyone else.

According to Adam Avery, competition in the microbrew market is fierce and the trade demands a lot of time from all involved. Being beleaguered in a New York City courtroom over matters of trademark infringement is the type of bad turn that could bankrupt any small business, regardless of who is right or wrong.

"If this had happened even a year from now when we were bigger and had been using the name longer, there's no doubt we would have fought it," says Adam Avery.

He hopes to see the brewery on par with Rockies Brewery of Denver within the next five years, producing 15,000 barrels of beer annually compared to its present production of 3,500 per year. But for now, the brewery remains small-and hard to find. In fact, one of the only things that indicates to a brewery visitor that he is in the right place, in addition to the distinct odor of waste grain familiar to all breweries, is a yellow hand-lettered sign taped to the window of its small "Business module" office in an East Arapahoe Road industrial campus. A small warehouse functions as the brewery property, and an office in the front houses a computer and fax machine.

The Averys agreed that changing the label would be the economical thing to do, despite the fact that the brewery's lawyers predicted a likely victory if the matter ended up before a judge.

"As it is, they have all the money and the ability to draw this thing on forever if they wanted," says Adam Avery, "So we slapped an 'i' in there."

No one is particularly happy with the outcome. Elle (the dog) even ran away for a spell, something out of the ordinary for the Avery pet, who usually spends the day under the desk in the office, afraid of the noise in the brewery.

"We think the stress of the (cease and desist) order got to her and she needed to wander away for a while," says Larry Avery. The excursion resulted in a broken hind leg, an injury from which she is recovering.

Indeed, the only winner in the affair seems to be the magazine. "We are delighted at the outcome," says Kuhn. "They realized that we had a valid dispute, and they took it upon themselves to amend the situation. We reached an amicable settlement."

Now that the stock of labels with the offending name upon them have been used up, the beer is officially known as Ellie's Brown Ale and the mystery among its fans as to how it is pronounced is settled once and for all.