A name change retrieves Avery Brewing from a lawsuit.

written by Lynn Bronikowski, Rocky Mountain News

Boulder-

Elle, a 3-year-old chocolate Labrador, lies under a desk at the Avery Brewing Co.

She's mellow, perhaps coy. After all, it's thought for a dog to be the center of an international incident.

Elle, the magazine from France, threatened to sue Elle the dog's owner after Avery Brewing named one of its core microbrews Elle's Brown Ale.

"We couldn't believe it. We got this certified letter from a New York law firm, and the first thing I thought was, 'Now what have, we done?'" said Adam Avery, president of the brewery tucked amid warehouses in an industrial section of Boulder.

Adam Avery runs the small brewery, which produces 3,500 barrels a year, with his father, Larry Avery, a former chemist, and his sister, Angie Avery, a recent University of Colorado law school graduate.

"We're just a little place that has five employees and a dog," said Adam Avery, also referring to head brewer Kevin McNerney and filtration expert Chris Lindsey.

The letter from the law offices of Kuhn and Muller threatened a lawsuit if Avery Brewing continued to use Elle's name as part of its lineup of five brews.

"Your use of ELLE for an alcoholic beverage would result in the likelihood of confusion as to the source, origin or sponsorship of your company's product....and constitutes a tarnishment of the mark by associating it with alcoholic beverages and is likely to adversely affect our client's valuable rights," read the warning.

The Averys have no idea how ELLE, the magazine, got onto Elle, the dog.

Angie Avery took the case to a CU law professor.

"He was in trademark law and said we could win," said Angie Avery, "I brought in the label and ELLE magazine, and he couldn't see how there could be customer confusion."

But ELLE was dogged in its pursuit of a cease-and-desist order, which landed in the hands of the brewery's lawyers. The lawyers said they could win, but it would cost the tiny brewery a bundle to head to New York and fight it at trial.

So Avery Brewing agreed to add an "I" to Elle, the dog's name. She's now Ellie, and since September the beer has been Ellie's Brown Ale.

That sits well with ELLE'S lawyers, who fired off a letter to France, enclosed the new Ellie labels and won a oui from the Paris publishers.

"We're just a small business and don't like to be messed with," said Adam Avery, 29, who started the brewery in the summer of 1993 after homebrewing for several years and graduating from Regis University with a degree in philosophy and politics.

"I just liked the name," said Adam Avery, who registered Elle with the American Kennel Association and pronounces the name like the 12th letter of the alphabet.

But from the beginning Angie Avery and her friends would affectionately call the pup "Ellie."

So the dog that lies under the desk makes no bones about the brouhaha.

And Avery Brewing continues turning out Razzy Wheat Ale. 14'er E.S.B., Redpoint Ale and Out of Bounds Stout.

"We've captured a good share of the Colorado market and now are going out of state," said Larry Avery of distribution in New Mexico, New Jersey and Illinois.

Beginning this holiday season, Avery Brewing will begin making seasonal beers, starting with a raspberry- chocolate beer called Raspberry Trufale.

It's made with 2 pounds of chocolate per barrel, tempting the Averys to name it after Larry and Nancy Avery's chocolate Lab.

Her name is Hershey.