Stillwater company wins trademark battle over nail-driving game Hammer-Schlagen

A Stillwater company with a 21-year-old trademark for the popular drinking game Hammer-Schlagen has won a trademark infringement battle with a Chaska brewery.

U.S. District Chief Judge John Tunheim ruled in early March that WRB Inc.'s trademark remains valid and enforceable. The trademark was established in 2000, according to the company's website and a lawsuit filed in December against Schram Haus Brewery.

The ruling said Schram Haus cannot use WRB's intellectual property in connection with advertising, promoting or selling any goods or services. It banned the brewery from using any of WRB's trademarks that may confuse or deceive customers about the ownership, origin or validity of the company's intellectual property.

The origin of Hammer-Schlagen is on WRB's website and in the lawsuit filed Dec. 11, 2020. The game, most frequently played around Oktoberfest with pints of beer, originated as a game in Germany.

The rules of Hammer-Schlagen, according to the company's website, involve each player standing around a tree stump and taking turns using the wedge end of a hammer to strike their own nail. Players get one swing per turn before passing the hammer along to the next player until someone's nail is flush into the log to win the game. Different conditions and nuances of the game vary by region, such as players drinking if they completely miss their nail or accidentally strike an opponent's nail.

Carl Schoene played a similar version of the game with friends growing up in Germany before immigrating to St. Paul in 1957. The game involved players taking turns swinging an ax at a single nail pounded into the side of a fallen pine tree, old tire, dirt or whatever was available, according to the website.

Schoene brought the game with him to Minnesota, substituting the ax for a hammer and giving each player a nail driven into the perimeter of a tree stump.

His parents, Karl and Elizabeth Schoene, built the restaurant Gasthaus Bavarian Hunter, where the game was played to try to boost beer sales during Oktoberfest, Winterfest and Sommerfest celebrations.

Carl's father-in-law, Mike Wlaschin, took over the nail-driving competitions in the 1980s and gave it the iconic Hammer-Schlagen name.

In 1999, Wlaschin founded WRB, under which all Hammer-Schlagen intellectual property is vested, and began promoting the game throughout the country. The company acquired a federal trademark registration for its logo in 2000.

In the December lawsuit, WRB claimed Schram Haus Brewery was featured in a publication in fall 2019 promoting Hammer-Schlagen as part of the brewery's inaugural Oktoberfest with a Hammer-Schlagen tournament that was advertised on Facebook.

WRB sent marketing services notices in August 2020 to breweries, including Schram Haus, that includes information on the registered trademarks. Despite this notification, WRB learned the brewery was again promoting Hammer-Schlagen on its website, social media and through Chaska's Oktoberfest.

The brewery was sent a cease-and-desist letter in October to stop infringing on the trademark, with the option to hire WRB to lawfully offer Hammer-Schlagen.

According to the suit, Schram Haus did not respond to the letter. A WRB employee attended the event Sept. 26, 2020 — which was a "socially distant" celebration during the pandemic — where the brewery identified the game as "Schrammerschlagen." WRB claimed this was counterfeit and an infringement of the registered trademark.

Schram Haus Brewery owners Aaron and Ashley Schram denied that they counterfeited WRB's brand and trademarks and requested a trial by jury. But in late February, the two parties resolved the litigation and entered into a confidential settlement.

Tunheim sided with WRB, ruling March 3 that the company maintains its registered trademarks and services.

Kim Hyatt • 612-673-4751