I haven’t been able to find a photo of a “Spinal Tap” beer bottle, and it’s not listed on Heritic’s web site, so I can’t say whether Heretic tried to trade on elements of the movie or band’s design elements, such as the nonsensical umlaut over the “n”. But if they didn’t–if they simply named a beer “Spinal Tap Ale”–then Shearer shouldn’t have any cause for complaint that the brewery was able to get a trademark on “Spinal Tap” beer, nor does that constitute evidence of trademark “abandonment”.
I’m not a lawyer, but as I understand trademark law, trademarks only protect phrases like that, especially common phrases like one describing a widely-used medical procedure, in relation to specific products. That’s why we have, for example, an Apple Records and an Apple Computer. No one else else can release a movie or form a band named Spinal Tap, but someone else could indeed trademark and manufacture a Spinal Tap beer, or Spinal Tap chocolate bar, or Spinal Tap tap shoes without infringing on the Spinal Tap movie and music trademark, as long as they didn’t try to tie the products to the movie in any other way. If the studio had attempted to oppose the registration of the trademark, we’d probably have read about it here as the sort of example of trademark overreach that Boing Boing likes to cover from time to time. What’s next, suing doctors who perform a spinal tap medical procedure for trademark infringement?
And a bit of irony…anyone remember how, around the time the movie finally hit DVD, Spinal Tap put up a temporary site called “Tapster” and promoted the sharing of their songs through it? In order to do that, they licensed the “Tapster” trademark, and temporarily borrowed the domain name of, a beer company.