The businessman who produced beer bearing the Fitger's name and some of its distinctive logos is making a bid to restore the brew's legitimacy.
A lawyer for Douglas Donnelly filed a notice of appeal on Jan. 15. Donnelly is challenging a preliminary injunction granted last month that effectively prohibits the further sale of a beer Donnelly was marketing as "A. Fitger & Co.'s Lager Beer."
Ed Schwartz, Donnelly's lawyer with the Christie, Parker and Hale law firm in Pasadena, Calif., said the injunction gives Fitger's On-the-Lake LLC of Duluth, which brought the suit against Donnelly, too much credit for the trademarks.
"It's claimed more trademark rights than it has any evidence for," he said. "We think the injunction that was issued is not properly supported and is certainly too broad."
Schwartz said the injunction exaggerates the recognition Fitger's symbols enjoy. He and Donnelly also dispute the integrity of some of the trademarks, such as a label for Pickwick beer Fitger's On-the-Lake said it alone has the right to use.
ADVERTISEMENT
Fitger's On-the-Lake brought a trademark infringement and false advertising action Nov. 21 against Donnelly, three Connecticut-based companies linked to Donnelly and Cloquet-based Michaud Distributing. Michaud distributed and sold the beer locally.
On Dec. 19, Judge Michael Davis found that Donnelly infringed on the trademarks used by Fitger's On-the-Lake by using symbols such as the Fitger's star-and-ship logo in the marketing of his beer.
Felicia Boyd, a lawyer with the Minneapolis firm Faegre and Benson who represents Fitger's On-the-Lake, declined to comment extensively on the appeal.
"I think it's unfortunate the matter continues to be in litigation," she said.
Boyd said the injunction will remain in effect during the appeals process, which she said could last up to a year.
As of last week, despite the injunction, at least one Duluth bar continued to sell Donnelly's Fitger's beer. It's apparently legal for businesses to do so until they are directly informed of the injunction, lawyers for both sides have said.
Fitger's On-the-Lake owns the Fitger's Brewery Complex at 600 E. Superior St. Donnelly and the company that brewed the beer are not affiliated with the management of the complex or with Fitger's Brewhouse, the microbrewery that is one of the brewery complex's tenants.
Donnelly has identified himself as the great-grandson of August Fitger, the German brewer who in the 1880s took over the brewery that would eventually bear his name. Donnelly's lager was brewed in Monroe, Wis.
