The world of craft beer has exploded in the past decade. In 2010, there were 1,813 craft breweries. In 2021, the number increased more than fivefold, to more than 9,500 breweries. With so many clever and creative brewmasters coming on the scene, it is no surprise that trademark disputes have seen a steady increase over the last decade as well. While trademark law may not be as sexy as recipe design or quality control, it is an essential part of any new brewery's business plan. Let’s look at trademark disputes and what craft brewers need to know.
Craft breweries are rooted in the “do-it-yourself” spirit. However, legal is not the area to flex your DIY muscle. Many startups may not be inclined to seek trademark law advice, relying instead on pro se filings (filing any court documents by yourself), hoping to protect their already strained budgets. However, the short-term savings of pro se filings may turn costly in the end. Beer law involves more than the everyday trademark clearance search and application, so seeking legal counsel often saves you in the long run.
Registering your trademark with the United States Patent and Trademark Office (USPTO) serves as evidence of your exclusive ownership and allows you to sue infringers in federal court. In addition, your application puts competitors on notice of your rights to the trademark and precludes claims of your diluting another brewer's mark. With hundreds of thousands of applications taking upwards of nine months for the first review, who wouldn’t rather spend their time brewing beer over searching through trademark databases and fighting for hop puns? By utilizing a trademark lawyer, you can continue fine-tuning your signature beer while they handle the busy work.
Due diligence is necessary before filing and registering your brewery’s trademark. The amount of resources you dedicate to this effort depends on your production plans and the level of risk you are willing to take. The flagship ale that is going to anchor your tasting room? You don’t want to end up renaming it in six months because another brewery was already using that name. But the one-off to commemorate your town’s softball championship might not require the same level of research. Seeking counsel and properly filing your trademark with the USPTO can lower your risk of infringement. This is why the timely filing of your application is important to avoid infringement cases and costly rebranding.
You are charged with defending your trademarks.
What happens when you find another brewery using your mark? If someone is infringing on your mark, it is up to you to stop them. Here are some practical steps to follow:
- Call/email the offender. Politely alert them to their faux pax and ask them to stop selling beer under your mark. Work it out over beers. Take the seminal case of Avery vs. Russian River, for example. This is not the case at all, and that’s exactly the point. Years ago, both breweries realized they were each selling a beer under the same name. Instead of fighting one another for exclusive rights, they combined their beers and sold the end product under the name Collaboration Not Litigation. Everyone went home happy, and they continue to get the positive press out of it.
- Send a cease-and-desist letter. If you cannot work something out informally, start creating a paper trail. Better yet, hire an attorney to send one. Letters on lawyer letterhead are no more powerful, but they tend to get attention.
- Use social media to your advantage. Most social media platforms have a takedown process for trademark infringement. Make sure you are using the trademark takedown and not the copyright takedown—they are two different things. If you can get the offending beer removed from social media, you might finally be able to get the other brewery’s attention.
- If all else fails, file a lawsuit. Lawsuits are expensive, both in terms of time and money. The decision to engage in them should not be taken lightly. Before you file anything, you should have a long talk with an attorney about the merits, the likelihood of success, and potential liabilities. It may be relatively rare, but sometimes a lawsuit is the best path forward.
Finally, filing your trademark application not only affords you certain legal rights and protection, it is also a beneficial move financially. A federally-registered trademark has increased value to investors. This gives them confidence in your brand and a willingness to increase the amount of equity they provide you. Properly filing your trademark makes it easier and safer to expand your brand to other areas of the U.S.
For more information on trademark and label art errors to avoid, see our video here. Are you dealing with a trademark infringement or dispute? Not sure how to proceed? Contact us for a consultation and let us bring our expertise to your brewery team. We’re here to help!