More sharks have been spotted swimming in the beer trademark waters these past few weeks, and the most recent sighting comes in the form of a (red) bull shark.

Startup brewery Old Ox in Ashburn, Virginia filed a trademark application at the United States Patent and Trademark Office (USPTO), for its name OLD OX BREWERY, and its logo, – a large white “O” with an overlapping, smaller light blue “X” – for “beer, ale, lager, stout, porter, [and] shandy.”

In response, energy drink producer and extreme sports sponsor Red Bull filed an opposition proceeding against Old Ox’s application. Old Ox faces different challenges in an opposition proceeding at the USPTO compared to the more familiar courtroom litigation.  A courtroom litigation addresses whether use of a mark infringes an existing mark, and a finding of infringement may result in money damages and an order to stop using the mark.  In contrast, an opposition seeks to block federal registration of a trademark. Accordingly, if Old Ox loses the opposition, it simply can’t own a federally registered trademark, but that does not necessarily block the mark’s use by Old Ox. Using the mark, however, would come at the risk of being sued in court by Red Bull. Arguably, the USPTO proceeding is a smaller undertaking than a full-scale litigation, but the David/Goliath imagery still holds.

Red Bull’s opposition states that the OLD OX mark is so similar to RED BULL marks that they are likely “to cause confusion, mistake or deception among purchasers, users and the public, thereby damaging Red Bull.” In support of that statement, Red Bull offers: “An ‘ox’ and a ‘bull’ both fall within the same class of ‘bovine’ animals and are virtually indistinguishable to most consumers. In addition, an ox is a castrated bull.” A publicly-posted letter by Old Ox’s president Chris Burns reveals that Red Bull has demanded (likely in “settlement” discussions) that Old Ox never use the colors red, silver or blue and never use bovine terms or images.

I don’t know about you, fellow consumers of bovine-associated products, but I had no idea that an ox is a castrated bull. Of course, when I did my homework, I discovered that Red Bull is not telling the entire truth. It turns out that an ox can also be an uncastrated bull, or a female bovine – what seems to be most relevant to ox-ness is its status as a beast of burden.

For purposes of the opposition, the USPTO will evaluate the likelihood that consumers will confuse the OLD OX mark with the RED BULL marks. The most relevant factors of the analysis here will likely be the similarity of the marks in their entireties as to appearance, sound, connotation and commercial impression, and the relatedness of the goods attached to the marks. A quick and dirty analysis reveals that OLD OX looks and sounds nothing like RED BULL. Though both are associated with beverages, Old Ox produces alcoholic beverages, beer in particular, while Red Bull produces non-alcoholic energy and soft drinks. These Old Ox registrations do not contain any bovine images or claims to a particular color, but I’d hazard a guess that beverage consumers faced with the idea of an ox, particularly an old one, won’t associate it with the red fighting bulls featured in Red Bull logos, even if those consumers do happen to be bovine classification experts.

(See if you are confused by comparing images from Old Ox and Red Bull Facebook pages!  Would you think that an Old Ox beer is associated with Red Bull, or that a Red Bull energy drink is associated with Old Ox Brewery?)

Most often oppositions are voluntarily terminated because the parties reach a settlement agreement before the opposition runs its course. Here, it appears that the parties are in discussion, but “Red Bully” hasn’t budged on its terms. I imagined that Red Bull’s USPTO filing would suffer the same fate as Lagunitas’ recent ill-fated court complaint, namely voluntary withdrawal following public outrage across social media on the internet, but that has not yet come to pass. Let’s hope the USPTO is more reasonable, and less confused, than Red Bull.

Hops have long been used in Chinese medicine to prevent and treat various ailments, from tuberculosis to heart disease to cancer. Recently, data from scientists at Lanzhou University support a role for hops in protecting the brain from neurodegenerative diseases like Alzheimer’s and Parkinson’s.

The Lanzhou scientists – Juan Yao, Baoxin Zhang, Chunpo Ge, Shoujiao Peng, and Jianguo Feng – identified oxidative stress as a primary cause of neurodegeneration, because neurons are particularly vulnerable to “free radicals” – atoms (or groups of atoms) that have an odd number electrons and are formed when oxygen interacts with certain molecules. Free radicals create the most damage when they form chain reactions and react with cellular DNA or cell membranes, often killing the cell. Cell death has more impact in the brain since neurons have limited replenishment over the human lifetime compared to other cell types. However, this process occurs throughout the body and is the reason why “antioxidants” – molecules that block activity of free radicals – are so trendy.

Yao et al. hypothesized that Xanthohumol (“Xn”), a compound in hops that has already been studied for various pharmacological properties, may protect neurons from oxidative damage. They isolated Xn and tested its effects against oxidative-stress-induced neural cell damage in a particular line of rat cells (PC12). The data showed not only that Xn may itself attack free radicals, but also that it activates a transcription factor (a protein that helps make DNA from RNA, thus regulating gene expression, contributing to cellular processes such as development and communication) called Nrf2 in the rat cells. Nrf2 in turn increases activity of cytoprotective genes, and correspondingly, availability of their antioxidant gene products, including glutathione, heme oxygenase, NAD(P)H:quinone oxidoreductase, thioredoxin, and thioredoxin reductase. This activity by Xn provided a protective benefit for the cells against free radicals and their negative oxidative effects.

The scientists state that the data show the first demonstration of this mechanism underlying the neuroprotective action of Xn. While it’s not clear that the hops in a pint of beer a day will supply sufficient Xn to protect your neurons, the study suggests that Xn is a good pharmacological candidate for prevention of neurodegenerative disorders like Alzheimer’s and Parkinson’s.

Yao J, Zhang B, Ge C, Peng S, Fang J. Xanthohumol, a Polyphenol Chalcone Present in Hops, Activating Nrf2 Enzymes To Confer Protection against Oxidative Damage in PC12 Cells. Journal of Agriculture and Food Chemistry. 2015.