I love craft beer. I love craft breweries. And when I say that, I mean it. I’m not newly into IPA’s or some other fun summer beer. I am deep into it. I love the craft of brewing beer. The ingredients, the styles, the process, the nuances in taste, everything. My trips to the beer store are 30-minute minings for craft beer gold (or at least, whatever I’m in the mood for that day). So when breweries make business mistakes that, because of my line of work and what I know, are so outright egregious, and boarder on risking the life of the brewery, I get peeved.
So here it goes. For awhile now I’ve been wanting to say this: BREWERIES, PLEASE CLEAR YOUR TRADEMARKS! (Yes, I’m yelling.)
Not a week goes by—and often times a day—that I see a brewery that I like, and care about, release a new brew with a trademark that screams lawsuit. (I’m not going to name names here.) Whether or not the brewery actually gets sued is one thing, but the risk that the brewery is subjecting itself to is a problem. Some of these trademark mistakes are in regard to trademarks of other breweries, but some aren’t. And so, while there is a sort of anti-litigation mentality in the craft brewing world (although as competition has increased, that has changed), and, therefore, it appears that breweries think litigation isn’t a real threat, other businesses (read: not breweries), are not so anti-litigation and not so freewheeling with their trademarks.
Two breweries, Weathered Soul’s Brewing’s and Souther Sky Brewer’s, recently received oppositions to their trademark registrations for MALTERIAL GIRL and GOLDEN TICKET, respectively. The opposers were not breweries, and you can probably take a guess as to who they are (Madonna and Warner Bros, just in case you didn’t guess).
(For more examples of brewery disputes, and many are actually brewery on brewery, see this exhaustive list, the compilation of which is quite the feat.)
Now, an opposition in-and-of-itself is not a big deal. If those breweries decide they don’t want to spend the money to fight for those names, they don’t have to. However, if the opposers (Madonna and Warner Bros) decide that opposing the application is not enough, they may require the breweries to cease using the names altogether. And if the beers have been brewed, canned, and labeled, the opposers might also require all the improperly labeled beer be pulled from stores and relabeled, or possibly even destroyed. That’s a problem.
From this, two things will come. Either the breweries do as demanded, or they fight the opposers. Either option costs a lot of money. All because of an ill-advised trademark decision.
Still, that’s one beer. One beer probably won’t hurt a brewery too much—hopefully. Imagine, though, if a brewery doesn’t clear the name of the brewery! That’s a big problem.
A quick hypothetical to demonstrate the point.
Let’s say your a homebrewer. A good one. You’ve won awards. People have praised your brewing skills and recipes. So you decide to start your own brewery. You take out a business loan, rent space, buy equipment, hire workers, brew your beers, and begin distributing. And, of course, you name your brewery, which for this hypothetical, we’ll call Boot Strap Brewing (you know, because of the whole bootstrapping a business thing).
The business does well. You start growing. (Since I’m located in Maryland, let’s say Boot Strap Brewing is a Maryland brewery.) You’ve created somewhat of a following in Maryland, and even a little in Virginia, DC, Pennsylvania, and Delaware. Business is going well. You hire a few more employees, take out a new, bigger loan to help with expanding the brewery, and keep making good beer and doing good business.
Then one day, seemingly out of the clear blue, you get a letter from a brewery in Colorado (or even a winery, cidery, distillery, or some other similar, or even non-similar business). The business is named Strapped Boots Brewing (or another permutation of Boot Strap). That business registered its trademark and has demands: 1) you stop using your name; 2) you pay them all profits derived from the use of the name; and 3) you use a new name that is in no way similar to their name.
Now what? For many breweries, that’s enough to close up shop. That demand is just too big, and would set the brewery back too far to keep the doors open. And us beer lovers no longer get to drink that wonderful beer.
To be sure, that’s a worst case scenario hypothetical. The place had to close.
Let’s say that doesn’t happen, but the brewery still has to go through a dispute, come to an agreement with Strapped Boots, go through settlement, etc. In the process they may spend $20,000-$40,000 and a year of the owner’s life just getting it all worked out. Eventually, the brewer can get back to focusing on the business and craft, but only after lots of stress. The worst part is, it could have been avoided for a fraction of the cost and time.
A simple trademark clearance goes a long way. Yes, it will cost money up front, and it may be that you never would have gotten into a dispute in the first place, but if your craft brewing business is a real business, that kind of risk is too great to ignore.
So if the brewing industry wants to thrive in the face of growing competition—and I hope it does—please, breweries, clear your trademarks. If your business fails, let it be because the other guy makes better beer, not because you were too lazy, ignorant, or cheap to protect your business. (Sorry to be harsh.)
And I know people like to claim that we’ve run out of trademarks. We haven’t run out of trademarks. It’s just that people are not putting the time and effort into choosing them.
Craft breweries notoriously despise litigation (or so it goes). One cost-effective way to avoid litigation: plan ahead, and clear your marks.
Ok. Now the next time I scan the beer aisle or scroll through twitter, and see a brewery with a trademark lawsuit waiting to happen, I can at least know that I tried.