Brewing Trademark Applications
Brewers and brewery owners, be diligent in your naming. The collaborative solidarity of the brewing community fissured long ago. It’s not gone--there still exists a wonderful collection of craft beer producers who will walk 10 miles uphill both ways in a snowstorm to loan you a sack of grain. Great value exists in fostering and supporting that community. But protect yourselves. You operate a business. Just as you lock your doors at night to protect your brewing assets, so should you do what is necessary to secure your company’s intellectual assets.
Local newspapers and international business blogs alike are flooded with stories of brewery-related trademark disputes. Within the past month:
- Sierra Nevada Brewing Co. was hit with an opposition from Fort George Brewery regarding Sierra Nevada’s 4-Way IPA application, right after shedding a trademark lawsuit from Lagunitas Brewing Co. earlier this year;
- Wisconsin’s O’so Brewing Company began a campaign to rename its Night Train porter, with all the label and packaging reprinting expense that involves, after receiving notice that it infringed on another trademark; and
- San Francisco Bay Area Rapid Transit District opposed Truckee Craft Brewing’s application to trademark “B.A.R.T.” as a beer, citing potential trademark dilution.
Many of these disputes arise because of the brewery’s failure to research a new name, though others appear to be from willful disregard of a similar mark. Don’t do either. A trademark dispute will cost you time and money that you could be investing in your business. Trademark diligence is not easy, but neither is making great beer. Both require careful attention to a process and careful attention to detail. You managed to learn the brewing process. You just need to learn the trademark application process.
The following are some best practices that could help vaporize a good chunk of these trademark disputes. The best practice would be to hire an attorney, at least to shepherd you through the naming process. Trademark issues can become thorny and may have expensive repercussions. But attorneys are not in every brewery’s budget. With these procedures, you are less likely to need an attorney in the future:
- Do your research. Before you commit to a brewery or beer name, plug it into Google. If you hire an attorney, this is probably right where he or she will begin. Google should tell you if anyone with a web presence (which is not everyone, believe it or not) is using that name in commerce. Other databases to check are BeerAdvocate and RateBeer, the TTB registry, and the United States Patent and Trademark Office (USPTO) site. The USPTO site is more advanced but allows you to search graphic marks—logos, essentially—and you will want to perform this search if you file a federal trademark application. If you find that no one on Google or the USPTO is using your name, you are not out of the woods. Someone may be using a mark with a similar spelling or similar appearance that did not come up in your search and your mark may infringe on it. However, clearing these searches will cut down on the likelihood that your mark infringes on another. You are less likely to encounter opposition or find yourself eventually flushing hard-earned goodwill.
- Make smart choices. If someone is using your name already, all is not lost, but the path of least resistance might lead you to abandon the name at this point. Doing so can be heartbreaking, but it beats rebranding after your success attracts the attention of a legitimate trademark owner.
- Reach out. Ask the existing trademark user if they object to your mark. Perhaps you can work something out that allows you both to use your marks in harmony. Or perhaps not, in which case you are still have invested almost nothing and have the agility to change course.
- Protect your mark. File a federal trademark application. You can do this yourself if you want to spend the time and energy. Hiring an experienced attorney is much less risky and more likely to result in a successful registration.
Monitor your mark. You have invested in it, you are using it, and you need to police it. If you believe someone is infringing on it, reach out. Always reach out. Contribute to the small-town feel of this rapidly expanding community. If that fails, consider enforcing your trademark through the legal system. No brewer aspires to be in litigation. But allowing another business to infringe your mark may hogtie you in the future and reduce or eliminate your rights to use the mark at all.