Focus, Food Service & Agriculture, and Law

Creativity is name of the game

The brewing industry is evolving, and with that comes trademark disputes.

May 29, 2015
| By Pat Evans |
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Kirin catches the creative wave rolling through Grand RapidsCreativity is name of the game
Brewery Vivant, pictured above, reconciled a spat with Pennsylvania’s Victory Brewing Co. that actually resulted in collaboration between the two craft brewers. Photo by Michael Buck

Craft brewers might need to get more creative.

At least that’s what Sheila Eddy thinks, following a glut of trademark disputes across the country over the past several years.

Brewers need to diversify their brands beyond generic terms such as “IPA” and “Pale Ale,” and even beyond more descriptive labels such as those named after hops, like “Centennial,” said Eddy, an intellectual property attorney at Smith Haughey Rice and Roegge.

Instead, brewers should look toward arbitrary and fanciful monikers for full protectable rights to the names.

“Just by virtue of a crowded industry, you’ll get some overlap of names,” Eddy said. “If new breweries want to protect themselves, they need to be more creative.”

The industry is growing at a fast rate, soaring to more than 3,500 breweries nationally this year, with more than 2,000 in the planning stages. By the end of the year, craft breweries could be opening at a rate of one every 12 hours, according to the Brewers Association, a national organization for craft brewers.

Trademark issues once were something breweries discussed occasionally, but have now become a constant concern, said Michael Brower, co-owner of Pigeon Hill Brewing Co. and a liquor law attorney at Stariha & Brower in Muskegon. He cited the 1998 name change of Bell’s Brewery’s Oberon from Solsun — too similar to a Mexican brewer’s brand — as an example that it’s not necessarily a new phenomenon.

Brower said the influx of brewers has sometimes led to a business-first mentality that could lead to the deterioration of the industry’s passionate “beer-first” camaraderie, which contributed to the rise of craft beer.

“Speaking mostly as a member of the industry, it may spell the end of the industry as we know it,” Brower said.

The rapid increase in breweries, wineries and distilleries is making it more difficult to come up with unique names, said Paul Gatza, director of the Brewers Association.

Gatza said some breweries might actually seek out a name conflict as a way to increase their business.

“One of the issues that is starting to emerge is the potential for companies to deliberately wade into a gray area or to seek conflict possibly for publicity reasons,” Gatza said. “We also see some brewers leveraging social media in these disputes. There are risks for everyone involved.”

Brewery Vivant owner Jason Spaulding said he’s had both a good and a bad experience in his two trademark conflicts.

At the 2013 Craft Brewers Conference in Washington, D.C., a group of Brewery Vivant employees were at a bar with friend and New Belgium Brewing Co. brewmaster Peter Bouckaert, who enjoys Brewery Vivant’s flagship beer, Farm Hand, a “French-style farmhouse ale.”

A few months prior, Spaulding had received a Google news alert about a brewery in Ardmore, Pa., making a beer called FarmHands. He sent an email asking them to keep the beer in the taproom and not distribute it.

That night in Washington, Bouckaert believed he had ordered a Farm Hand but ended up with FarmHands, which was also on tap.

“He loves Farm Hand, so he ordered one and says, ‘I don’t think this is your beer,’” Spaulding said. “That set us off.”

Having already contacted the brewery, Tired Hands Brewing Co., about the name, Spaulding turned to a cease-and-desist letter. He said the letters are written in a way to garner attention, including a note about how similar cases have been known to reach large monetary settlements.

“They decided to interpret that as we would sue them for millions of dollars — that we’re big Brewery Vivant and we’re trying to crush Tired Hands,” Spaulding said. “They got their fan base behind them. I understand you have to protect your hometown brewery, but that went out of hand.”

Tired Hands no longer makes a beer called FarmHands, but Spaulding said he received hate mail for six months and still sees the issue come up on social media. On a recent trip to Philadelphia, Spaulding said he wanted to stop in at Tired Hands, but was told not to.

The reason Spaulding was in Pennsylvania was to celebrate the release of Brewery Vivant’s collaboration with Victory Brewing Co., which, ironically, was the result of another potential conflict.

Coming off the Farm Hand issue, Spaulding said Brewery Vivant decided it needed to protect its names — including the company name. When the business name “Brewery Vivant” was filed, notice of intent popped up for a beer name, Bon Vivant, from Victory.

Spaulding reached out to Victory and, following approximately a year of discussions, the two companies decided to coexist and file with the patent office with that understanding.

“We had a good time talking and, as brewers often do, we talked about beer — ‘maybe we can make a beer together,’ and ideas formed,” Spaulding said.

As a result, Bon Vivant, a saison-style ale, was brewed in Pennsylvania by the two breweries and debuted at March’s annual Brewer’s Plate event in Philadelphia. Brewery Vivant used the occasion as an opportunity to distribute to the Philadelphia area for a limited time.

The annual Craft Brewers Conference is in Philadelphia next year, and Spaulding said Brewery Vivant and Victory will collaborate again.

A similar outcome took place when Hudsonville’s White Flame Brewing Co. and Indiana’s Three Floyd’s Brewing Co. met over beers, and Three Floyd’s agreed to stop using the name “Black Flame.”

Gatza said the Brewers Association stays out of trademark disputes, but he hopes breweries will try to handle disputes “respectfully and creatively.”

A somewhat less friendly agreement came of a dispute between Rockford Brewing Co. in Michigan and Rockford Brewing Co. in Illinois. Both breweries agreed verbally to a shared use of the name, except in the respective states of residence, according to Michigan’s Rockford Brewing Co. co-owner Seth Rivard.

“Neither side pushed it,” Rivard said. “We may all sign it someday, but in the meantime it’s just a verbal agreement.”

Should Rivard and his partners desire to distribute in Chicago, they would have to use a different name. For now, they’re focused on growing the brewery’s Michigan market share.

“With everything going on, we’ve made the issue a very low priority, so I don’t give it much thought these days,” Rivard said. “I am a bit nervous it may bite us someday as both businesses grow.”

In April 2014, Bell’s Brewery asked North Carolina’s Innovation Brewing to stop the trademark process for its name. The request was in defense of Bell’s “Inspired Brewing” and “Bottling Innovation since 1985” taglines.

Bell’s Vice President Laura Bell took to the Internet in March following news of the case moving to the federal trademark office because of Innovation’s rebuff. She said there is concern with Innovation’s trademark application and its potential influence on Bell’s brand.

She also said Bell’s offered co-existence agreements and to pay for legal fees. Innovation started a GoFundMe website to help pay for resulting legal costs, raising $5,114 of its stated $40,000 goal. A ruling is not expected before October.

Sierra Nevada Brewing Co., Magic Hat Brewing Co., Dogfish Head Craft Brewery and Craft Beer Alliance also have been involved in trademark cases.

Some trademark cases are sparked by longtime rivalries, such as when Lagunitas Brewing Co. took on Sierra Nevada over how the letters “IPA” looked on a Sierra Nevada label. Lagunitas owner Tony Magee eventually dropped the issue because of public outcry.

“A lot of it is these young brewers playing the victim with, ‘Hey, I’m just a little guy,’” Spaulding said. “Then you go to Sierra Nevada and Lagunitas, and that guy’s just poking.

“You just have to be objective and reasonable.”

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