Craft Brewers Scrap Over Catchy Names
by Samuel C. Wolf
The craft-beer industry is running low on names. There are more than 4,600 craft breweries in the U.S. – California leading the nation with over 500, according to the Brewer’s Association.
Each microbrewery generally produces many individual beers and brewers are increasingly finding themselves at odds with others across the country. The legal battles to protect beer brands and corporate names from trademark theft are increasing quickly.
The U.S. Patent & Trademark Office (USPTO) has seen at least 25,000 active registrations and applications related to beer, according to a recent article published by The Wall Street Journal.
Microbrew: What’s in the Name Just as Important as What’s In the Bottle
Most naming disputes get resolved in quasi-judicial USPTO proceedings. Others go further.
Last fall the Brooklyn Brewery sued a tiny unknown brewery in the San Joaquin Valley called Black Ops Brewing, claiming its name violated the trademark it had for a seasonal $30 imperial stout the New York brewery produces called Brooklyn Black Ops. Several months of litigation and one preliminary injunction later, and the Fresno operation is now called Tactical Ops Brewing Inc.
Beer-namers also have to consider wine and spirits trademarks. Fireball Cinnamon whiskey maker Sazerac Co. recently opposed Martha’s Vineyard-based Bad Martha Brewing Company’s attempt to trademark “Fireball Beer,” leading the Massachusetts brewery to abandon the mark.
It’s always cheaper to obtain a trademark registration than trying to prevent competitors from passing off a brand without statutory trademark rights – and much easier to enforce registered rights than rights under any common law principle. This is because federal registration provides constructive notice of the registrant’s claims of ownership and is prima facie evidence of the validity of the registered trademark and of the registrant’s right to use the trademark in commerce nationwide.
As the beer market gets congested, new brewers must proceed cautiously to avoid run-ins. Microbrewers should:
- Explore registrations early.
- Conduct trademark availability searches using the USPTO’s Trademark Electronic Search System before investing in production.
- Conduct Internet searches to assess common law usages of the proposed mark.
- Assess any conflicting or similar marks prior to filing for a registration or adopting the mark.
These preliminary steps can help avoid costly disputes later on.
Samuel C. Wolf is an attorney in our Franchise & Distribution, and Business Litigation Practice Groups.