Craft Beer – Lessons in Trademarks and Civility
Maumee Bay Brewing Company was launched twenty years ago. Located in the Oliver House in downtown Toledo, Maumee Bay crafts more than two dozen beers. That’s a lot of beer, and a lot of trademarks! This year, Maumee Bay applied for federal registration of five of its handcrafted beer trademarks, and the applications have been approved. It looks like registrations will issue this year.
Interesting to note that Maumee Bay filed a sixth application. It seeks registration of the mark High Level Distilling for distilled spirits. The application was based on Maumee Bay’s bona fide intent to use this mark. It looks like Maumee Bay intends to branch out!
The Brewers Association, which calls itself “A Passionate Voice for Craft Brewers”, reports that there were 3418 craft brewers in the US in 2014. The number is growing and soon it is likely to reach the number of craft brewers in the US in the nineteenth century when, according to the Association, there were more than 4000. With thousands of craft brewers brewing at least one craft beer, there are tens of thousands of craft beer trademarks. Maumee Bay waited 20 years to apply to register some of its beer trademarks, but there are several reasons why brewers should apply sooner, rather than later, to register their trademarks
In the US, using a trademark establishes trademark rights but, generally speaking, only in the area where the product is sold. Federal registration establishes nationwide rights, even for a trademark that is used on beer sold only regionally or even locally. In addition, a federally registered mark is easy to find for someone who is thinking about using your trademark, and it’s easy to find for a trademark attorney in the Patent and Trademark Office so that she may refuse registration in case someone else applies to register your trademark.
In the craft beer industry, brewers have taken some interesting approaches to trademark disputes. At one end of the spectrum, there is Lagunitas Brewing Company which sued Sierra Nevada for trademark infringement in connection with its India Pale Ale labels. IPA is an acronym for India Pale Ale and no one has the right to stop anyone else from using these generic terms. Nonetheless, Lagunitas took umbrage when Sierra Nevada freshened up its labels for its IPA. According to Lagunitas, the IPA on the new Sierra Nevada labels mimicked the IPA on Lagunitas’ India Pale Ale product because the font, color, kerning, and “weathered look” of those initials were similar on both packages.
Social media blew up and one of many irritated customers tweeted: “You’re suing over kerning? The labels look nothing alike and you’ve just done more damage to your brand than SN did.” The founder of the Lagunitas Brewing Company realized that the lawsuit may have been ill-advised. He tweeted his intention to withdraw the lawsuit the very next day.
At the other end of the spectrum, we have Vinnie Cilurzo of Russian River Brewing and Adam Avery of Avery Brewing. They became friends in the 90’s and, a few years later, as Adam tells it on the Avery Brewing web site, “…we realized we both had a Salvation [intricate Belgian-style ales, according to Adam] in our lineups. Was it going to be a problem? Should one of us relinquish the name rights? “Hell, no!” we said. In fact, it was quickly decided that we should blend the brews to catch the best qualities of each and create an even more complex and rich libation. In April 2004, in a top secret meeting at Russian River Brewing (well, actually it was packed in the pub and many were looking over our shoulders wondering what the hell was going on), we came up with the perfect blend of the two Salvations. Natalie, Vinnie’s much more significant other, exclaimed, “We should call this Collaboration, not Litigation Ale!” “Perfect,” we shouted! We celebrated deep into the night (or is that morning?). Any trademark attorney can tell you why this was a bad decision from a trademark standpoint. How many can tell you why it was the right decision for these two passionate and principled brewers?