Monica Gutierrez | October 2, 2016<\/p>\n
Craft beer brewing has become an incredibly profitable business. New craft beer breweries are popping up everywhere and often, each with their unique brewing name with an even more uniquely named beer. It\u2019s a fun and fast changing industry, but more and more breweries are having trouble coming up with a name for their breweries and their beers. Virtually every large city, notable landscape feature, weather pattern, concepts, and images have been snapped up and trademarked as the name of either a brewery or a beer.\u00a0 Currently, there are more than 3,000 breweries, thus finding names for a new brewery or beer is increasingly hard to do without stepping on someone else\u2019s shoes.<\/p>\n
The problem has increased so much that brewing companies have begun to sue each other over their trademarks. Trademark law is intended to protect consumers from confusion about the source of a product. For example, if one brewery calls themselves \u201cIPA Brewing\u201d and then another comes and calls themselves \u201cIPA 2 Brewing\u201d, it is likely a consumer will get confused. Thus, potential harm can come to the goodwill of the first brand (i.e., people say IPA 2 Brewing has horrible beer, and subsequently people think IPA Brewing also has horrible beer, because the names are so similar). Since it seems all names have been taken for both breweries and beers, it has become increasingly worrisome to beer companies that they will face litigation. Luckily, some of these cases have shed light on what a new beer company can expect, and what can help them steer clear of a potential suit.\u00a0 So, to help any new beer companies out there, here\u2019s a quick recap of some of these \u201ccraft beer\u201d cases and their takeaways:<\/p>\n
Anheuser-Busch, Inc. v. Caught-on-Bleu, Inc., <\/em>288 F. Supp. 2d 105 (D.N.H. 2003)<\/p>\n The marks: <\/u><\/p>\n Beer powerhouse Anheuser-Busch (AB) sued Caught-on-Blue (COB) for trademark infringement, trademark dilution, and unfair competition. AB has brewed and marketed beer in the United States under the trademark \u201cBudweiser\u201d since 1876. Within a few years of the beer\u2019s introduction, the public came to refer to it as \u201cBud.\u201d The court discussed the many millions of beer sold under this trademarked term \u201cBud\u201d, and that AB had a family of marks in the term \u201cBud\u201d, in part due to their use of the term in other beers (i.e., Bud Light, Bud Ice, etc.). Additionally, the Bud mark in connection with its beers has been used in countless advertising and in a wide range of merchandise.<\/p>\n COB began in 1995 when the President of the company thought of naming a product after Billy Budd, the title character from Herman Melville\u2019s posthumously published and unfinished work Billy Budd, Sailor (An Inside Narrative). <\/em>Impressed by \u201cBilly Budd\u201d as a \u201cmanly name,\u201d the company considered it as a brand name for a beer. Eventually, COB applied to register the \u201cBilly Budd\u201d mark with the United Stated Patent and Trademark Office (USPTO) in 1997, marketed and sold the beer and brand for two years, and eventually stopped in 1999 when AB threatened suit.<\/p>\n Outcome: <\/u><\/p>\n The mark \u201cBud\u201d is an incredibly strong trademark, having been used for years and having spent millions on advertising the beer using the term \u201cBud.\u201d Strong marks are afforded the most protection under Trademark Law. Additionally, since the mark \u201cBilly Budd\u201d used a similar color scheme (red, blue, and white), it made the marks all the more similar. Further, consumer surveys showed that people, upon seeing the \u201cBilly Budd\u201d mark, assumed it was associated in some way with the \u201cBud\u201d mark. AB wins.<\/p>\n Lesson:<\/u><\/p>\n When creating a new beer, know the market<\/strong>. If you want to use a certain term in your beer, be sure that a giant beer company isn\u2019t already using it. Although it may seem like it\u2019s different, the longer a company has been using a mark (and spending millions to advertise it) the less likely a newcomer can overcome this association in the minds of consumers. Additionally, if you insist on using the term, ensure that the logo and the color scheme (at the very least) are entirely different from your competitors.<\/p>\n Bear Republic Brewing Co. v. Cent. City Brewing Co.<\/em>, 716 F. Supp. 3d 134 (D. Mass. 2010)<\/p>\n The marks:<\/u><\/p>\n Bear Republic Brewing Co. (Bear Republic) filed a complaint against Central City Brewing (Central City) citing trademark infringement, trade dress infringement, and unfair competition. Bear Republic started in 1995 in California as both a microbrewery and brewpub. Since 1995, Beer Republic has manufactured and distributed its beers, most notably their \u201cRacer 5 India Pale Ale\u201d (Racer 5) and their red ale, Red Rocket. Bear Republic owns a trademark registration for both the mark Racer 5 and Red Rocket, including their designs. Both designs use red and yellow as the primary colors.<\/p>\n Central City Brewing was opened in 2003 in Canada. In 2003, the brewery began to produce a beer under the name Red Racer. The inspiration for the name and logo was claimed to have started from a painting at a restaurant, Moderne Burger. The painting was of \u201cpin up\u201d style, with a woman on a blue bicycle. Central City adapted the image for its use, turned the bicycle red, changed the size and shape of the bike. Eventually they put their mark on a beer can and named it Red Racer. The beer did very well, and Central City decided to brand all of its retail beers under the Red Racer mark.<\/p>\n Outcome:<\/u><\/p>\n The court found that the Racer 5 and Red Racer were not similar enough to cause confusion. Although the products shared the term \u201cRacer\u201d and they used a somewhat comparable font and color scheme, the designs and trade dress of the two marks \u201clook so different as to distinguish sufficiently the products.\u201d Additionally, the court noted that Bear Republic had not shown that its product had attained secondary meaning in the term \u201cRacer.\u201d If it had, perhaps then the marks would be confusing to consumers.<\/p>\n Regarding Red Rocket, the court also found that Red Racer was not similar enough to the mark to cause confusion citing many of the same reasons as Racer 5. The court also stated that Red Rocket\u2019s overall design was very different from that of Red Racer. The court also mentioned that there was evidence that Central City came up with Red Racer before Bear Republic registered their trademark in Racer 5 or Red Rocket. Additionally, the court stated that although the terms were similar, consideration of the marks in their entirety (the way in which a typical consumer would encounter the products in the marketplace) led to the conclusion that the marks were not similar enough.<\/p>\n Lesson:<\/u><\/p>\n Keep records of everything. Although it was only a small discussion in the case, being able to prove that your company thought of a mark prior to the registration of another brewery\u2019s mark, will help your case. Also, ensuring that your overall logo is different from another \u201csimilar sounding\u201d mark is of vital importance. As the court states, even if the words themselves are similar, if the overall look of the logo is different, it is unlikely that a consumer will be confused. A unique logo design used together with a name will help sway any confusion a consumer may have with your brand and another.<\/p>\n Brooklyn Brewery Corp. v. Black Ops Brewing, Inc., <\/em>No. 115V01656GEBEPG, 2016 WL 80632 (E.D. Cal. Jan. 7, 2016)\u00a0<\/em><\/p>\n The marks:<\/u><\/p>\n Brooklyn Brewery sells a beer under the registered mark \u201cBrooklyn Black Ops.\u201d Brooklyn Brewery has used the mark since 2007, and had the mark registered in 2009. The beer is a Russian imperial stout beer that is \u201caged for four months in bourbon barrels, bottled flat, and re-fermented with Champagne yeast\u201d and is sold on a seasonal basis. Frequently, the beer is referred to as \u201cBlack Ops.\u201d The beer was promoted through sponsorships, print media, and through promotions conducted by nationwide distributors and retailers. Additionally, the beer was sold in 28 states, not including California.<\/p>\n Black Ops Brewing opened in 2015 in California. The term \u201cBlack Ops\u201d is only used in conjunction with the name of the brewery. Black Ops Brewing attempted to register their mark \u201cBlack Ops Brewing\u201d with the USPTO, but was denied. The USPTO explained that Defendant\u2019s mark was \u201chighly similar in sound, appearance, meaning, and overall commercial impression to Brooklyn Black Ops.\u201d<\/p>\n Outcome:<\/u><\/p>\n The court uses a sight, sound, meaning test. Using this test, the court determines that the marks are confusingly similar, and thus, Black Ops Brewery is enjoined from using the mark any further. Brooklyn Brewery\u2019s registration of the mark and the USPTO\u2019s denial of Black Ops Brewing registration is telling, since in their rejection letter they cite that the mark could be confused with \u201cBrooklyn Brewing.\u201d<\/p>\n Lesson:<\/u><\/p>\n This is a lesson for early registration. Registering your trademark is incredibly important to be able to stop another beer company from using your name. Brooklyn Brewery\u2019s registration with the USPTO office helped their case, since the USPTO subsequently rejected Black Ops Brewing\u2019s application, stating their mark was too similar to Brooklyn Brewing. If this had not happened, the case could <\/em>have turned out differently. There are a number of incentives for registration of a mark, and the earlier you do it, the better.<\/p>\n","protected":false},"excerpt":{"rendered":" Monica Gutierrez | October 2, 2016 Craft beer brewing has become an incredibly profitable business. New craft beer breweries are popping up everywhere and often, each with their unique brewing name with an even more uniquely named beer. It\u2019s a fun and fast changing industry, but more and more breweries …<\/p>\n","protected":false},"author":3,"featured_media":4312,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"image","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-4310","post","type-post","status-publish","format-image","has-post-thumbnail","hentry","category-journal-blog","post_format-post-format-image","column","twocol"],"yoast_head":"\n