As the number of craft breweries has grown, so has the number of trademark disputes. Some of them have gotten nasty. But according to the experts, many of these disputes are avoidable.
Andy Crouch of All About Beer magazine spoke to attorneys who do trademark work for breweries. Topping their list of advice: protect the mark by registering it with the federal government. Even though a brewery acquires limited trademark protection by putting its product on the market, failure to register invites rival breweries to register first, and leads to disputes over the where the brewery’s territory ends. Before bringing its beer to market, the brewery should also do its homework, paying particular attention to whether similar marks are already registered. It should also invest the time and come up with distinctive marks that are easy to defend–though that job is getting harder as the number of breweries grows.
“Use it or lose it” is a basic principle of trademark law. This means a brewery can’t sit idly by when a competitor brings out a beer with a similar name or appearance. But how should a brewery deal with such a situation? A polite letter to the competitor often solve the problem, since most infringers are unaware that someone else has a better claim. However, some disputes can’t be resolved amicably. In those cases, the worst thing the combatants can do is litigate their case in the social media. All that does is make one side appear whiny and the other look like a villain, and makes both sides look petty to boot.
Here’s another sign that the craft brewing industry is experiencing growing pains. With more than 2,000 breweries doing business in America, unique beer names are getting harder to come by. As a result, brewery owners are finding out–sometimes the hard way–that someone is always using that name and thus owns the trademark. While most disputes over beer names are resolved without a lawsuit–the copycat brewery simply chooses a new name–some say that tougher competition for market share has made people less cooperative.
Rock Art Brewery, a micro located in Vermont’s Northeast Kingdom, is facing a trademark suit over its use of “Vermonster” for one of its beers. Hansen Beverage Company, the maker of Monster energy drinks, contends that “Vermonster” would dilute the “Monster” trademark and has demanded that Rock Art stop using the name.
Rock Art isn’t the first brewery to be on the receiving end of a cease-and-desist letter over the use of a beer name. Some years ago Bell’s Brewery, Inc., changed “Solsun” to “Oberon” after the Mexican brewer of “Sol” beer threatened to take Bell’s to court.