Anheuser-Busch Incorporated v. The Stroh Brewery Company

JOHN R. GIBSON, Circuit Judge.

Whether “LA” is a protectible trademark for a low alcohol beer marketed by Anheuser-Busch Incorporated is the issue before us. Following Anheuser-Busch’s introduction of its product, the Stroh Brewery Company introduced “Schaefer LA,” also a low alcohol beer. An action to enjoin Stroh’s use of LA followed. The district court, 587 F.Supp. 330,¹ finding that the term LA was suggestive in that it required some imagination to connect it with the product and, accordingly, was a protectible trademark, issued a permanent injunction. On appeal, Stroh argues that as a matter of law LA is generic or descriptive in nature, since the term is comprised of the initials of the phrase “low alcohol.” Stroh also argues that should the issue be determined to be a factual one, the findings of the district court are clearly erroneous. We conclude that whether LA is suggestive is a factual issue and that the findings of the district court are not clearly erroneous, and we affirm the judgment of the district court.

For several years Anheuser-Busch had been interested in producing a low alcohol beer both because of its need to develop new markets for growth and because of growing public concern over the health aspects of beer consumption and the problem of drunken driving. Other breweries had similar interests and, in fact, two smaller companies, Hudepohl Brewery and Christian Schmidt Brewing Company, had marketed reduced alcohol beers under the brand names of Pace and Break. Anheuser-Busch accelerated its plans in the fall of 1983, obtained approval from the Bureau of Alcohol, Tobacco and Firearms (BATF) for an early version of its LA label on November 21, 1983, and began using the LA mark on beer shipped in interstate commerce on December 5, 1983. On January 20, 1984, Anheuser-Busch issued a press release informing the industry and public of its plans to sell LA beer. On the same date, application was made for registration of the mark LA. In March, AnheuserBusch commenced marketing the beer. At the time of the commencement of the trial on May 7, 1984, it was marketing the product in ten test markets preparatory to distribution on a national basis.

On March 5, 1984, Stroh issued a press release announcing its plans to introduce a low alcohol beer. On March 7, 1984, Stroh obtained BATF approval of two separate beer labels using LA, one with the product name Schaefer and the other with the product name Old Milwaukee. On March 26, 1984, after receiving objections from Anheuser-Busch, Stroh issued a press release stating that it planned to market Schaefer LA beer. This action, brought on April 18, 1984, against Stroh for trademark infringement, trademark dilution and unfair competition under 15 U.S.C. § 1125(a) (1982), the Lanham Act, and for violation of the Missouri antidilution statute, Mo.Rev.Stat. § 417.061 (1978), followed.

During the trial, marketing executives of both parties testified, as did Yoram (Jerry) Wind, a Professor of Marketing and Management at the Wharton School, University of Pennsylvania, who testified as to the results of marketing surveys he had conducted and Herbert E. Krugman, a consultant in public opinion and consumer research. There was testimony concerning low alcohol beers in Australia and the predominance in that market of Tooth LA. beer. There was detailed evidence of Anheuser-Busch’s studies concerning the new product, particularly those dealing with the selection of a name which stressed the desire of Anheuser-Busch to select a brand that would allow it to preempt the new market. Stroh representatives testified that they believed LA would become the generic name for this segment of the beer market. There were frequent references to the use of the words “Light” and “Lite” in the light beer market, the predominance in that market that the Miller Brewing Company had achieved, and AnheuserBusch’s admitted desire to emulate Miller with respect to LA in the low alcohol market. Insofar as other evidence must be considered in resolving the issues in the case, we will discuss it in detail at that time.

In its opinion, the district court began its analysis by recognizing the following principles:

A term for which trademark protection is claimed will fall in one of four categories: (1) generic, (2) descriptive, (3) suggestive, or (4) arbitrary or fanciful. These categories, like colors in a spectrum, tend to blur at the edges and merge together, making it difficult to apply the appropriate label. * * * The correct categorization of a given term is * * * a factual issue.

WSM, Inc. v. Hilton, 724 F.2d 1320, 1325-26 (8th Cir.1984) (citations omitted). After careful analysis, the court concluded that LA was not generic, descriptive, arbitrary or fanciful² but was suggestive and therefore was protectible.³ The district court considered consumer perception of the term LA as demonstrated by public opinion surveys in reaching its conclusion. The district court then considered whether there had been infringement under the Lanham Act and Missouri’s antidilution statute. It found that Anheuser-Busch was the first to appropriate and utilize the LA mark and that Stroh had appropriated LA in order to dilute its distinctiveness in the marketplace and create confusion between the products.

On appeal Stroh argues that the district court erred as a matter of law since the initials of a generic or descriptive term such as low alcohol cannot assume trademark status, since the court found itself that LA is a “category descriptor,” since consumer perception was employed as the principal test for determining whether LA was generic or descriptive, and since Anheuser-Busch had the burden of proof to establish that it was entitled to a trademark for LA. Stroh makes other arguments, including ones based on a report to Anheuser-Busch from a consulting firm stating that LA would not be protectible as a trademark, and on a failure to ask in the opinion survey the question, “What, if anything, do the initials LA mean to you in relation to this product?” It also argues that the injunction is overly broad in that it extends to “any other acts which are likely to cause confusion, mistake or deception with plaintiff.” The arguments made are sufficiently general to cause us to conclude that Stroh is also suggesting that the findings of the district court are clearly erroneous.

I.

The threshold issue in this case is whether the district court’s determination that LA is suggestive and therefore protectible is a factual finding to which the clearly erroneous standard must be applied or is erroneous as a matter of law. As we have held previously, the categorization of a term for which trademark protection is claimed is considered to be a factual issue, WSM, Inc., 724 F.2d at 1325-26, and thus is to be reviewed under the clearly erroneous standard of Fed.R.Civ.P. 52(a). Stroh, admitting as much, argues on appeal that nonetheless the finding of fact was predicated on an error of law not subject to the clearly erroneous standard.

Stroh first argues that the initials of a generic term such as “low alcohol” cannot assume trademark status, citing National Conference of Bar Examiners v. Multistate Legal Studies, 692 F.2d 478, 488 (7th Cir.1982) (“Under settled trademark law if the components of a trade name are common descriptive terms, a combination of such terms retains that quality. * * * Abbreviations for generic or common descriptive phrases must be treated similarly.”), cert. denied, - U.S.-, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). In National Conference, however, the plaintiffs sought to pro: tect both the phrase “Multistate Bar Examination” and the initials “MBE.” As the district court noted in its discussion of the case:

[National Conference ] is distinguishable from the facts here because plaintiff is not seeking to protect an accompanying phrase, such as low alcohol, light alcohol, less alcohol, light alternative, nor any of a number of word combinations for which the mark LA could stand. And, of course, because of the BATF regulations at the time of its initial label-making decision, plaintiff has not designated on the label what LA does stand for.⁴

Rather, the question in the instant case is whether, when a party seeks to protect initials alone which are also the initials of a generic or descriptive phrase, the initials are to be equated with that phrase. The key issue, as the eases demonstrate, is the nature of the relationship or tie between the initials and the generic or descriptive phrase and the relationship or tie between the initials and the product. As the district court properly held, if some operation of the imagination is required to connect the initials with the product, the initials cannot be equated with the generic phrase but are suggestive in nature, thereby rendering them protectible.

In Modern Optics v. Univis Lens Co., 234 F.2d 504, 43 C.C.P.A. 970, (1956), the court concluded that “CV” was a valid trademark even though it was composed of the initials of the words “continuous vision” which were alleged to be descriptive of trifocal lenses. As did the district court, we find the reasoning of Modern Optics persuasive:

[Although we have considered appellant’s contentions as to the descriptiveness of the words “continuous vision,” it is not necessary to determine whether those words are merely descriptive of trifocal lenses, since appellee is not seeking registration of those words, but a mark whose dominant feature is the letters “CV.” The letters “CV” are, of course, the initial letters of the words “continuous vision,” and it is possible for initial letters to become so associated with descriptive words as to become descriptive themselves. * * * It does not follow, however, that all initials of combinations of descriptive words are ipso facto unregistrable. While each case must be decided on the basis of the particular facts involved, it would seem that, as a general rule, initials cannot be considered descriptive unless they have become so generally understood as representing descriptive words as to be accepted as substantially synonymous therewith.

Id. at 506 (citations omitted). The question before the Modern Optics court then became one of whether the record had established that the initials in question were a generally recognized term for the generic or descriptive term from which they were derived. Id. The district court correctly realized it faced the same question in its consideration of the meaning of the term LA.

The statement in National Conference which Stroh urges that we adopt as a rule of law cites as sole authority FS Services v. Custom Farm Services, 471 F.2d 671, 674 (7th Cir.1972). In that case, plaintiff was denied protection for the letters FS, where such were used in colors and motif totally dissimilar to its mark. Id. at 673. The specific rule stated in FS Services, however, is that “[abbreviations for generic terms where they are generally recognized must be treated similarly.” Id. at 674 (emphasis added). As the court in Kampgrounds of America v. North Delaware A-OK Campground, 415 F.Supp. 1288, 1292 (D.Del.1976), pointed out, the FS Services court placed heavy “reliance on its determination that the abbreviation FS had itself become a descriptive or generic term representing the descriptive words farm service or farm supply.” We believe that the sentence from National Conference upon which Stroh relies must similarly be so qualified.⁵ In addition, we do not believe that the presence of a very brief statement in a case from another circuit made in an entirely different factual context, which demanded no particular consideration of its import, should by its very presence cause its elevation to the status of an established rule of law.

Stroh cites as authority 3 R. Callmann, The Law of Unfair Competition, Trademarks, and Monopolies § 18.23 (4th ed. 1983) and asserts that “the author states that numerals and letters are not valid trademarks if they are not used solely for the purpose of indicating origin.” The section of the treatise on which the assertion is based discusses numerals and letters that either stand alone (normally as grade marks to indicate the nature, quality or size of a product or service) or are commonly understood abbreviations. The treatise discusses elsewhere the issue in the instant case and there states that the issue of the descriptiveness of an acronym “depends on whether the initials are recognized as equivalent to the full phrase.” Id. § 18.10. Stroh also refers us to some thirteen cases in support of their contention. We have examined these cases carefully and find that in none is it stated as a matter of law that initials of generic or descriptive phrases are unprotectible.⁶ We conclude that the district court did not err as a matter of law in engaging in a factual determination of the proper classification to be accorded the initials LA.

Stroh next argues that the district court erred as a matter of law in enjoining Stroh’s use of the mark “Schaefer LA” after finding that LA itself was a “category descriptor.” We do not believe, however, that the court so found. Stroh’s assertion depends on the following passage from the district court’s opinion:

The facts reveal that Anheuser-Busch presented the industry with sufficient notice of its selection of a brand name. At that time, defendant, on the basis of marketing considerations, decided to use its established brand name with a category descriptor consisting of the same mark plaintiff was using as a brand name — LA (Defendant’s post-trial brief, p. 18) (emphasis added).

A “category descriptor” is presumably a term descriptive of a category. Whether the term LA was descriptive in nature was discussed at length by the district court. It specifically found that it was not. We believe that the district court in the passage above simply meant what it said: Stroh had used Anheuser-Busch’s brand name LA as a category descriptor together with its own established brand. Stroh may have used LA as a category descriptor and hoped it would become such generally,⁷ but the district court does not say that it found the term to be such. To read the sentence otherwise would grossly distort the specific findings of the court. Since we do not believe the district court found LA to be a category descriptor, we find no error as a matter of law in the court’s issuance of its injunction.

Stroh next argues that the district court erred as a matter of law in relying primarily on consumer perceptions in its classification of LA. It asserts that consumer perceptions should not be used as the principal test for “terms that have started out as generic category descriptors.” Stroh’s assertion assumes that LA is a “generic category descriptor.”⁸ As discussed above, the district court specifically found LA to be neither generic or descriptive. Thus Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 995 (7th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980), the case Stroh cites as authority, is not on point: that case deals with the irrelevance of a survey of the responses of 988 beer drinkers to “the meaning of a familiar word of Anglo-Saxon heritage” (i.e., “light”). The mark LA in a beer-drinking context obviously is not so familiar. As the Miller case itself points out, when “a coined word for a commercial product” is involved, the proper test becomes “what ‘buyers understand by the word.’ ” Id. (quoting Bayer Co. v. United Drug Co., 272 Fed. 505, 509 (S.D.N.Y. 1921)).

In WSM, Inc. we specifically stated that “[t]he test for deciding whether a word has become a generic title of a product or service is one of buyer understanding: ‘What do the buyers understand by the word for whose use the parties are contending.’ ” 724 F.2d at 1325 (citations omitted). The same test applies when deciding whether a word is descriptive. In re Abcor Development Corp., 588 F.2d 811, 814 (C.C.P.A.1978).

Stroh argues that in addition to consumer perceptions, other factors such as the understanding of those familiar with low alcohol beer (presumably those in the beer trade, since consumers are being distinguished) and the intent of Anheuser-Busch in adopting the mark LA should have been considered. The test, however, is what consumers, not persons in the trade, understand the term to be. WSM, Inc., 724 F.2d at 1328 n. 3; Big O Tire Dealers v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1369 (10th Cir.1977), cert. denied, 434 U.S. 1052, 98 S.Ct. 905, 54 L.Ed.2d 805 (1978); Nature’s Bounty, Inc. v. SuperX Drugs Corp., 490 F.Supp. 50, 54 n. 3 (E.D.N.Y. 1980); Salton Inc. v. Cornwall Corp., 477 F.Supp. 975, 985 (D.N.J.1979); Blisscraft v. United Plastics Co., 294 F.2d 694, 699 (2d Cir.1961) (“In determining whether a claimed trademark is descriptive at the time of its adoption, its meaning to a non-purchasing segment of the population is not important. The critical question is whether the mark is descriptive to the prospective purchasers of the article.”).

Even if LA has been used in some descriptive manner by persons in the trade, it is immaterial if consumers do not perceive LA to be a generic or descriptive term for beer. We therefore conclude that the district court did not err as a matter of law in relying primarily upon consumer perceptions in classifying the term LA.

Stroh finally asserts that the district court erred as a matter of law since the burden of proving the trademark status of LA fell on Anheuser-Busch. We agree that since the initials LA were not registered, Anheuser-Busch had the burden of establishing trademark status. National Conference, 692 F.2d at 488; Reese Publishing Co. v. Hampton International Communications, 620 F.2d 7, 11 (2d Cir. 1980). Stroh does not indicate where in the record it finds indications that the district court placed the burden of proof on Stroh. We see no indication from the record that the district court so acted. Rather, our examination convinces us that the burden of proof was properly allocated.⁹ Hence, we find no error of law.

Thus, we find no error of law by the district court on the particular points urged by Stroh. Since we do not believe that we should abandon our rule that the question of the proper category in which a term is to be placed for trademark purposes is a question of fact, we shall follow our precedent in WSM, Inc. and review the district court record under clearly erroneous standard of Rule 52(a).

II.

A.

Stroh argues that since the term LA was merely generic or descriptive, the district court improperly relied on the consumer survey offered into evidence. Stroh further attacks the methodology of the survey.

As we have noted above, Stroh’s argument would have required the district court to assume what,it had to find, for in determining if a term is generic or descriptive, a court is to view the term from the standpoint of the average prospective purchaser. In determining the viewpoint of the prospective purchasers in trademark and unfair competition cases, substantial weight may be accorded the result of a properly conducted survey. See Squirtco v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir.1980); Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803, 817 (8th Cir.), cert. denied 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969); Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366 (7th Cir.), cert. denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976); James Burrough Ltd. v. Sign of the Beefeater, Inc., 540 F.2d 266, 278 (7th Cir.1976). Courts have frequently relied upon properly conducted surveys in determining whether marks are generic or descriptive. Indeed, survey evidence may be the most practical manner of approaching the evaluation of public reaction in such cases. E.I. DuPont de Nemours & Co. v. Yoshida International, 393 F.Supp. 502, 518 (E.D.N.Y. 1975). For instance, in DuPont v. Yoshida, the court rejected the argument that the mark TEFLON was generic on the basis of two surveys which showed that 48% and 68% of consumers recognized TEFLON as a brand name, even though one of the surveys showed 31% thought TEFLON was a common descriptive name. Id. at 526. See also Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1254 n. 11 (9th Cir.1982); Stix Products v. United Merchants & Manufacturers, 295 F.Supp. 479, 490-92 (S.D.N.Y.1968). The survey offered into evidence was properly central to the district court’s findings of fact.

Stroh also argues that the consumer survey was improperly designed. The survey was designed by Dr. Yoram Wind, Professor of Marketing and Management, Wharton School, University of Pennsylvania.¹⁰ The district court found that the consumer survey was fairly and scientifically conducted by qualified experts and impartial interviewers, that the study drew responses from a sample of a relevant portion of potential consumers, that the questions, upon which the results relied, did not appear to be misleading or biased, and that the recordation of responses was handled in a completely unbiased manner. These findings were not challenged on appeal. Stroh, however, argues the survey was defective because respondents who were familiar with low alcohol beer were not asked what LA meant.¹¹

This issue was addressed at trial. On cross-examination Dr. Wind was asked why the question, “What does the designation' LA suggest to you?” was not asked. Dr. Wind testified:

If I will ask them after all these questions what does it mean or what does the designation of this, * * * first of all I’m directing them, I’m leading here, it’s a leading question. I am directing them to start scratching their head what does it mean and then they can go into all types of puzzles and games especially in an experimental setting. They will tell me Los Angeles or try to guess what else.

What I’m trying to do is try to get the true meaning and the best way of getting the true meaning is open ended questions, not directive questions that ask the respondent to tell me. What can be better than asking what it is, describe it, or what type of beer is it, or what is the brand name. Very simple non-biasing type questions.

Dr. Wind also stated that if a student of his had included such a question in “a research design he would have gotten an F in the course.” We believe the district court did not err in finding Dr. Wind’s defense of his research design persuasive. Further, an opposing expert, Dr. Herbert E. Krugman, testified on direct examination that to ask such a question would be to engage in “a fishing expedition.” He further stated that respondents would “start guessing” if so asked and that some might guess “Los Angeles,” some “Light Anheuser” and some “low alcohol.” That such a variety of answers was posited as probable responses is further indication of the suggestiveness of the term LA.

Dr. Wind was cross-examined at great length. The district court also heard the views of Dr. Krugman. It is clear from the district court’s opinion that the Wind surveys were carefully scrutinized before it reached its determination that Stroh’s evidence did not contradict the essence of Dr. Wind’s research findings. While differing views were expressed, we cannot say that the trial court was clearly in error in reaching its conclusions about the surveys.¹² Stroh also argues that the omission of its proposed question means Anheuser-Busch has not met its burden of proof. Given our conclusions regarding the surveys, we must also conclude that the district court did not clearly err in finding that the weight of credible evidence supported the conclusions it reached and, hence, that Anheuser-Busch’s burden of proof was met.¹³

B.

As we observed above, the district court grounded its analysis of the protectibility of LA on four mutually exclusive categories: the generic, descriptive, suggestive, and arbitrary or fanciful.¹⁴ See WSM, Inc., 724 F.2d at 1325. The district court found the term LA to be suggestive in nature.

Stroh argues that the term is generic. We have addressed above and found wanting Stroh’s contention that initials of generic phrases must similarly be so classified. We have also addressed and rejected Stroh's contention that a “marketplace survey can serve little purpose” in determining if a term is generic. Since we have found that the district court was not clearly erroneous in its evaluation of the consumer survey offered into evidence and in according it the weight it did, we must also conclude that the court was not clearly in error in finding as a matter of fact that LA was not generic.¹⁵

Stroh also argues that LA is descriptive, not suggestive. The district court adopted the distinction between the two stated in Abcor Development, 588 F.2d at 814: “Generally speaking, if the mark imparts information directly, it is descriptive. If it stands for an idea which requires some operation of the imagination to connect it with the goods, it is suggestive.” See Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d at 379; Abercrombie & Fitch Co. v. Hunting World, 537 F.2d 4, 11 (2d Cir. 1976). As with genericness, the descriptiveness of a mark is to be determined from the standpoint of the average prospective purchasers. Abcor Development, 588 F.2d at 814. The district court therefore properly looked to the consumer survey in reaching its conclusion that “LA * * * stands for an idea which requires some operation of the imagination to connect it with the product.”

Stroh argues that only when one is unaware that the product is low alcohol beer could any imagination be involved in assessing the nature of the product from the initials LA. However, the survey demonstrated that of those respondents who had seen, heard of, or tried LA beer, when asked “what type of beer is it?” only 24.4% answered “low alcohol,” “light alcohol,” “half alcohol” or “less alcohol.” We cannot say that the trial court was in error in finding, after examining such results, “that consumers do not generally recognize the term LA to immediately connote low alcohol when they see such on plaintiffs product.”

Stroh argues that the commercial context in which the term LA is used, including advertising for the product, must be considered, citing Abcor Development, 588 F.2d at 814 (“Evidence of the context in which a mark is used on labels, packages, or in advertising material directed to the goods is probative of the reaction of prospective purchasers to the mark.”). The statement in Abcor Development was made in response to a claim that the proper test was the meaning of a term to an “ultimate consumer, who has never seen the product and does not know what it is.” Id. at 812. In the instant case, the meaning of the term LA to consumers who had seen or heard of or tried the product was surveyed. As the district court noted, “the relevant time frame for determining a mark’s protectibility is the present, not the future.” It may well be that at some time hence Anheuser-Busch may more forcefully link the term LA to the phrase “low alcohol.” It is clear, however, that the commercial context in which LA beer was introduced was not ignored in the design of the survey.

Further, at trial, a witness called by Stroh, James R. Buell, Jr., a former Stroh employee employed at the time of trial by Anheuser-Busch, stated that he felt LA was suggestive of the phrases “low alcohol,” “less alcohol,” or “light alcohol,” and that one of the subjects under discussion at Anheuser-Busch had been “ways to speed up or strengthen the association in the buying public, the consumers between LA and the fact that it’s a low alcohol product.” If the connection were as obvious as Stroh now suggests, such need to strengthen the association would have been unnecessary. Again, we do not believe the district court was clearly erroneous in finding that LA is suggestive in nature.

C.

Stroh also contends that the district court failed to properly consider in reaching its findings the Australian experience with low alcohol beer, the lessons to be learned from Miller’s marketing of light beer, and the intentions of Anheuser-Busch as discerned from internal documents, including a preemptive move by AnheuserBusch in the low alcohol market.

Tooth LA, a low alcohol beer, has been marketed in Australia for about five years. Stroh argues that the “bar call” for low alcohol beer in Australia has become “Give me an L.A.,” that the term LA is generic or descriptive there, and that a word that is generic or descriptive in a foreign country should be accorded the same status in the United States. The cases and treatise cited by Stroh in support of the latter proposition, however, deal with the question of whether words from modern languages should be treated as equivalent to their English translations (such as French “café” for “coffee”). A number of cases hold that a term may be generic in one country and suggestive in another. In Carcione v. The Greengrocer, Inc., 205 U.S.P.Q. (BNA) 1075 (E.D.Cal. 1979), the defendant argued that the trademark Greengrocer, which is a generic term in Britain for a retailer of fruits and vegetables, was not entitled to protection as a trademark in the United States. The court rejected this argument on the ground that it is irrelevant how a term is used outside the United States: “The parties agree that the term is generic in Britain. Since we deal here with American trademark law, and thus American consumers, neither British usage nor the dictionary definition indicating such usage are determinative.” Id. at 1077. See also Seiko Sporting Goods U.S.A., Inc. v. Kabushiki Kaisha Hattori Tokeiten, 545 F.Supp. 221, 226 (S.D.N.Y. 1982) (efforts to prove the mark Seiko was generic in Japan rejected since only issue was consumer recognition in the United States); Abercrombie & Fitch, 537 F.2d at 10. We believe these holdings are correct. Therefore, the district court was correct in not ascribing weight to the Australian experience in its determination of consumer perceptions or its ultimate classification.

Stroh discusses in its brief the marketing by Miller of light (or, as Miller spells it, “Lite”) beer. Miller initially claimed trademark rights in “Lite”; extensive litigation ensued.¹⁶ In the meantime, states Stroh, “Lite” became the bar call, and Miller gained a preemptive stranglehold on the light beer market.

We find the Miller eases inapposite to the instant case. Those cases established that “light” was a term that had been used for a great many years in the beer industry and by consumers to describe a beer’s col- or, flavor, body, alcohol content, or a combination of these and therefore was generic or descriptive. We believe the term LA is sufficiently dissimilar from “light” that these cases afford little precedential value.

Stroh argues that internal documents of Anheuser-Busch reveal both a descriptive or generic use of the term LA and an intention to preempt the low alcohol beer market with a mark similar to “Lite.” Stroh in particular refers to a report from Interbrand Corporation, an independent marketing consultant firm which speaks of preemption and also renders the opinion that LA is not protectible.

We believe the evidence does indicate that Anheuser-Busch likely hoped to gain a significant share of the low alcohol beer market and to establish a mark that might become the “bar call.”¹⁷ We also believe the evidence does establish that LA was, at times, used in a generic or descriptive sense internally. However, such matters are not relevant to the trademark status of LA, given the rules of law we have discussed above.

III.

Stroh also argues that the injunction issued by the district court was unnecessarily broad in that it was not limited solely to beer and enjoined “doing any other acts * * * likely to cause confusion, mistake or deception with plaintiff.” After careful consideration of the district court’s order, however, we conclude that the injunction was properly drawn so as to afford Anheuser-Busch effective relief against future infringement of its trademark LA.

We affirm the issuance of the injunction by the district court.

1 . The Honorable Roy W. Harper, Senior United States District Judge for the Eastern District of Missouri.

2 . The district court’s opinion states:

In this Court’s opinion, a term should not be equated with generic or descriptive phrases merely because the individual letters of the term may be interpreted to be initials of that generic or descriptive phrase. * * * [T]he real test is the consumer’s perception of such term. * * * [EJxhibited at trial were numerous memoranda and communications gained through discovery of plaintiffs internal process of selecting a brand name. This proof establishes that plaintiff anticipated the connection between LA and low, less or light alcohol among consumers in the future. Bolstering this evidence were a number of newspaper and trade journal articles disclosing plaintiffs introduction of the brand name LA with explanations that LA means low alcohol. With this evidence it is difficult to conclude that the term LA is either arbitrary or fanciful when prominently featured on a can or bottle of beer.

3 . The district court’s opinion states:

[I]t is this Court’s opinion that the study supports a conclusion that LA, when placed prominently on a can of beer as the sole brand name, stands for an idea which requires some operation of the imagination to connect it with the product, and therefore is suggestive in nature. * * * The sum of defendant’s evidence fails to contradict the essence of the research study's findings. The weight of credible evidence supports a conclusion that LA, as a brand name for a malt beverage product, is suggestive of a nature or quality of the product and is, therefore, protectible as a valid trademark.

4 . The court had earlier observed that at the time of approval of the label, BATF regulations had prohibited reference on the label to low or reduced alcohol content. On April 27, 1984, the BATF issued a new regulation allowing products containing less than 2.5% alcohol by volume to be described as low alcohol or reduced alcohol malt beverages.

5 . Indeed, though Stroh argues otherwise in its reply brief, in its original brief it asserts that “[i]f a phrase is generic, the strong public policy against market preemption through the abuse of the trademark laws requires that, at least in cases where initials clearly and obviously stand for the generic phrase, the initials are similarly disqualified for trademark appropriation" (emphasis added).

6 . Rather, the cases turn on whether the initials have themselves become generic or descriptive. See, e.g., Martell & Co. v. Societe Anonyme de la Benedictine, 116 F.2d 516 (C.C.P.A.1941) ("B and B” popularly used for thirty years in United States as designation for Benedictine and brandy in equal parts and therefore not protectible); Nature’s Bounty, Inc. v. Basic Organics, 432 F.Supp. 546 (E.D.N.Y.1977) ("B-100” associated with 100 milligrams of vitamin B complex by buying public); In re Uniform Product Code Council, Inc., 202 U.S.P.Q. (BNA) 618 (T.T.A.B. 1979) ("UPC" and "Universal Product Code” common descriptive names for bar and numeric symbols); Burroughs Corp. v. Microcard Reader Corp., 138 U.S.P.Q. (BNA) 517 (T.T.A.B.1963) ("MICR” used in electronics and banking industries as an abbreviation for and interchangeably with "magnetic ink character recognition”); In re General Aniline & Film Corp., 136 U.S.P.Q. (BNA) 306 (T.T.A.B.1962) ("PVP” recognized abbreviation for "polyvinylpyrrolidone” by average purchaser).

7 . See infra note 15.

8 . This phrase apparently merges two categories, the generic and the descriptive. The pertinent test in either category is the same.

9 . The district court, after determining that “the results and conclusion of the research expert must be accorded relevant weight in determining the descriptiveness of the mark,” then concluded that "[t]he weight of credible evidence supports a conclusion that LA, as a brand name for a malt beverage product, is suggestive * * * and * * * therefore protectible.” We conclude from this language that the district court found that Anheuser-Busch had carried its burden.

10 . The district court summarized the methodology and results of the survey thus:

The survey was conducted at shopping malls in fifteen cities, eight of which were already test markets for plaintiffs product. Respondents were screened for the proper characteristics and were subsequently divided into two test cells: Those who have not ever seen, heard of, or tried plaintiffs product, and those who have seen, heard of, or tried the product. The researcher's general conclusion was that consumers perceived the LA label to be the brand name of the product and not a generic designation for low alcohol beer. The raw data supports this conclusion. * * * The researcher concluded that the difference between these two sets of data basically measured the effect of advertising on those who had ever seen, heard of, or tried the product. Even with the rise of respondents familiar with the product who answered, "low,” "less,” or “light alcohol,” to the question, “What type of beer is it,” it is apparent from the study that consumers do not generally recognize the term LA to immediately connote low alcohol when they see such on plaintiff’s product.

11 . Responses were gathered from the following statements and questions: Please describe the product. What type of beer is it? What is the brand name of this new product? What company produces this brand}

12 . Judge Bright in his dissent argues that the market surveys did not deal with the real world and real market, polling only a group of consumers not familiar with low alcohol beer and hence legally irrelevant. First, this criticism overlooks the fact that, with the exception of two reduced alcohol products with low market penetration, this was a new product introduced to a consuming public generally not familiar with low alcohol beer. The Wind surveys were properly concerned in part with just such an audience to whom the new product was being introduced. Second, and crucially, it is clear from the district court’s opinion that it carefully compared the responses from consumers who had not seen, heard of, or tried the product with those from consumers who had seen, heard of, or tried the product before reaching its conclusion that ”[e]ven with the rise of respondents familiar with the product who answered, ‘low,’ ‘less,’ or Tight alcohol,’ to the question, 'what type of beer is it,’ it is apparent from the study that consumers do not generally recognize the term LA to immediately connote low alcohol when they see such on plaintiff’s product." See supra note 10. The argument of the dissent but underscores the fact that the effect of advertising was measured by comparison of the survey responses of the two groups.

13 . The dissent goes far beyond a determination of whether the district court’s findings were clearly erroneous. In many respects the dissenting opinion makes its own findings concerning the penchant of the American public and what future public understanding will be.

14 . As Stroh has urged, and as Judge Eschbach observed in Walt-West Enterprises v. Gannett Co., 695 F.2d 1050, 1057 (7th Cir.1982), the labels in this classificatory scheme “are merely springboards for analysis, not a substitute for it.” As Judge Eschbach also observed:

Properly understood, the so-called trademark spectrum reflects levels of judicial skepticism concerning whether the term actually serves the source denoting function which a mark is supposed to perform. Terms which are arbitrary, fanciful, or suggestive as applied to a given product or service are naturally understood by the consuming public as designations of origin: it is unlikely that such terms would be understood as anything else. * * * Descriptive terms, on the other hand, are ill-suited to serve as designations of origin, for such terms are naturally understood by the consuming public in their ordinary descriptive sense.

Id. The categories the district court distinguished in the instant case are thoroughly consonant with this underlying rationale, and, indeed, require its application for a proper job of discernment. Classification per se is no evil, as the Walt-West court also made clear in stating that a "district court’s classification of the term on the trademark spectrum * * * may only be set aside if after considering all the evidence we are ‘left with the definite and firm conviction that a mistake has been committed.”’ Id. at 1058 (citations omitted).

15 . The district court stated that ‘‘[d]uring testimony, defendant’s vice-president of marketing admitted that LA was not now a generic term as far as consumers are concerned, and that if Anheuser-Busch uses LA and several other breweries use it, that it would become generic.” In the testimony the court refers to, T. Hunter Hastings testified:

[W]e became more convinced than ever that LA would become the generic name for this segment of the beer business, the low alcohol segment, based on the fact that AnheuserBusch with their enormous resources had adopted it. * * *

Q. After you learned about AnheuserBusch's plans and after they had made their announcement about their new brand, then did Stroh decide that they ought to use LA prominently on the label for your new product as well?

A. We believed that it would become the generic designator for the segment; therefore, we should use it, yes.

Q. You say you believed it would become, in other words, it isn’t now a generic term as far as consumers are concerned?

A. Probably not, no.

Q. But you think if you use it, it will become that, is that correct?

A. That if Anheuser-Busch uses it and several other brewers use it, that it would become so, yes.

Q. Of course. If everybody uses the same brand name, it will soon lose its distinctiveness, isn't that true?

A. Yes, sir.

16 . See Miller Brewing Co. v. Falstaff Brewing Corp., 655 F.2d 5 (1st Cir.1981); Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978); and Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990 (7th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980).

17 . Judge Bright’s dissent is critical of the actions of Anheuser-Busch, finding in its protection of the mark LA an attempt to preempt the low alcohol beer market. It is useful in this context to recall Justice Frankfurter’s famous discussion of the purpose of trademark law:

The protection of trade-marks is the law’s recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a trade-mark exploits this human propensity by making every human effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same — to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade-mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress.

Mishawaka Rubber & Woolen Manufacturing Co. v. S.S. Kresge Co., 316 U.S. 203, 205, 62 S.Ct. 1022, 1024, 86 L.Ed. 1381 (1942). We can neither condemn Anheuser-Busch for its desire to appropriate to its use the "commercial magnetism” of the symbol it first adopted nor agree with the dissent that the equities of the case before us require that we sanction what the district court found: the appropriation of the brand name of a competitor by Stroh. If there is preemption by Anheuser-Busch here, it is no more than that enjoyed by those who introduce new products onto the market. We do not believe that such enterprising innovativeness is to be condemned.