In today’s marketplace, “craft” products abound and “artisanal” goods reign supreme. In no industry is this shift in consumer psyche more apparent than beer. Consumers are eager to try the latest, greatest IPA or stout from their local brewer. And the idea of craft beer is appealing, too. Not only do craft breweries offer a great product, they offer consumers a sense of community‒ the feeling they are supporting local producers of fresh, quality ingredients.
There are 4,600 craft breweries in the United States, with two new craft breweries opening every day, according to the Brewers Association. It comes as no surprise the craft beer marketplace is getting crowded, particularly when it comes to trademark registration and branding overall.
A trademark is not simply about product identification, it is about conveying the personality of the company, or in this case, the brewery. As Julia Herz, program director at the Brewer Association and publisher of CraftBeer.com, discusses in her article “Three Branding and Marketing Questions All New Breweries Should Ask Themselves,” tied to every successful brand is the brewery’s identity, and creating an image, logo or tagline that conveys that identity.
But as more craft breweries emerge, the ability to create unique images, logos or taglines becomes more difficult. In a recent article in the Wall Street Journal, “Hopportunity Cost: Craft Brewers Brawl Over Catchy Names as Puns Run Dry,” Sara Randazzo discussed the increase in trademark disputes among craft breweries. She writes,
With more than 4,600 craft breweries in the U.S. and counting, each with many individual beers, every nook, pun and cranny has been overturned in the quest for creative names for new suds. As the options run out, breweries are increasingly finding themselves at odds with peers across the country, turning to legal battles to protect beer and brewery names from trademark theft.
The greater likelihood for disputes is changing the manner in which trademark attorneys handle trademark searching and clearance for their craft brewery clients. The nature of craft brewing is that it is small (the Brewers Association defines an American craft brewer as “small,” producing 6 million barrels of beer or less each year). It is critical that craft breweries, particularly start-ups, avoid extensive legal fees caused by challenges to newly adopted trademarks. Realizing this, trademark attorneys may consider a more conservative approach when advising craft breweries in the process of selecting a trademark.
Trademarks similar in appearance, sound or connotation in connection with unrelated goods may be regarded as not different enough. The U.S. Patent and Trademark Office considers beer, wine and spirits “related” for purposes of a likelihood of confusion analysis. This results in difficulties in selecting a trademark in the already crowded craft beer industry, and the required additional consideration of existing marks in the wine and spirits fields. Recently, High Water Brewing Inc., a California brewer, had its application for registration of “No Boundary IPA” rejected. The USPTO trademark examiner found that an existing registration, "No Boundaries" for wine would cause consumer confusion. See In re High Water Brewing, Inc. (Serial Application 85886282). Similarly, an effort to register “5 Golden Rings” for beer failed in the face of existing registrations for “Gold Ring” and “Golden Ring Vineyards” for wine. See The Bruery, LLC (Serial Application 85656671). The result is craft breweries sometimes resort to abstract concepts and foreign languages to find a trademark which avoids potential opposition.
So what is the good news for craft breweries when it comes to trademarks? For one, many trademark disputes are settled out of court through informal negotiations among the parties. While breweries must think about their bottom line, the sense of community present in the industry also means brewers are often willing to work with one another to reach an amicable resolution. There is also the public relations fallout that can come from filing a lawsuit. In 2015, Lagunitas Brewing Company withdrew its trademark infringement lawsuit against Sierra Nevada Brewing Company following public backlash regarding use of a distinctive black font for IPA.
Another case to monitor is Moosehead Breweries Limited v. Adirondack Pub & Brewery, Inc. (2015-cv-00260 Northern District of New York), which may provide precedent regarding the relatedness of “hard sodas” to beer and other alcoholic beverages.
At Blumenfield and Shereff, we represent craft brewers, distillers and hop producers in building and managing their trademark portfolios. If you are interested in discussing your trademark or marketing needs, please feel free to contact us.