(Originally posted June 13, 2014 in IP Legal Forum)
It seems like every week there is a new trademark dispute involving craft breweries. One need only check Beerpulse or Brewbound, two popular beer industry sites, to see many posts about craft beer trademark disputes. This is not surprising because the number of craft breweries has been growing at a phenomenal pace and is now at a record number. As of June 2013, there were 2,538 breweries in the United States, a 25% increase since 2011 (there are now more than 2,700 estimated). And the number of beer brands is growing even faster. An article in DRAFT Magazine states that there are more than 12,000 beer brands registered with the United States Patent and Trade Mark Office (USPTO) and 45,000 wine and spirits trademark registrations. That makes it very difficult to come up with an unique and distinctive mark. Some beer brands like OL’ RED CEASE AND DESIST and REDACTED IPA are beers whose original names were changed to legal terms after a trademark dispute.
It seems like every week there is a new trademark dispute involving craft breweries. One need only check Beerpulse or Brewbound, two popular beer industry sites, to see many posts about craft beer trademark disputes. This is not surprising because the number of craft breweries has been growing at a phenomenal pace and is now at a record number. As of June 2013, there were 2,538 breweries in the United States, a 25% increase since 2011 (there are now more than 2,700 estimated). And the number of beer brands is growing even faster. An article in DRAFT Magazine states that there are more than 12,000 beer brands registered with the United States Patent and Trade Mark Office (USPTO) and 45,000 wine and spirits trademark registrations. That makes it very difficult to come up with an unique and distinctive mark. Some beer brands like OL’ RED CEASE AND DESIST and REDACTED IPA are beers whose original names were changed to legal terms after a trademark dispute.
Brewery Fallout
What is a brewery to do? Well breweries should, of course, do a careful search of other trademarks before launching a new brand. They also might one to consider using a single unique “house” brand rather than having to come up with a new name for each style of beer that they produce. Fortunately, the craft beer industry is very collegial and many disputes never end up in litigation or come to light in the news media because breweries have amicably settled their differences. In an often cited instance of cooperation, Russian River Brewing of Santa Rosa, California and Avery Brewing of Boulder, Colorado both realized they had SALVATION brand beers and decided to make a blend of their beer, re-named COLLABORATION NOT LITIGATION ALE. Of course, that’s not always a feasible solution, but Collaboration is reflective of the cooperative spirit that prevails in the industry.
Still, the number of disputes is on the rise and the trend will probably continue. It may be time for the industry to consider some sort of industry-sponsored or industry-promoted alternative dispute resolution (ADR) procedure for these disputes. For example, the Brewers Association might consider encouraging brewery members to submit disputes that cannot be initially resolved between the parties to mediation (such as to an INTA International Trademark Association mediator) or to binding arbitration, or even create a beer industry panel to arbitrate such disputes.
By creating such a process, the beer industry could streamline the resolution of such disputes, reduce costs and get back to what it does best: brew more beer.
(Eugene tweets on legal issues and news in the beer industry at @BeerAttorney. He spoke on trademark law issues at the recent Craft Brewers Conference in Denver, Colorado).
What is a brewery to do? Well breweries should, of course, do a careful search of other trademarks before launching a new brand. They also might one to consider using a single unique “house” brand rather than having to come up with a new name for each style of beer that they produce. Fortunately, the craft beer industry is very collegial and many disputes never end up in litigation or come to light in the news media because breweries have amicably settled their differences. In an often cited instance of cooperation, Russian River Brewing of Santa Rosa, California and Avery Brewing of Boulder, Colorado both realized they had SALVATION brand beers and decided to make a blend of their beer, re-named COLLABORATION NOT LITIGATION ALE. Of course, that’s not always a feasible solution, but Collaboration is reflective of the cooperative spirit that prevails in the industry.
Still, the number of disputes is on the rise and the trend will probably continue. It may be time for the industry to consider some sort of industry-sponsored or industry-promoted alternative dispute resolution (ADR) procedure for these disputes. For example, the Brewers Association might consider encouraging brewery members to submit disputes that cannot be initially resolved between the parties to mediation (such as to an INTA International Trademark Association mediator) or to binding arbitration, or even create a beer industry panel to arbitrate such disputes.
By creating such a process, the beer industry could streamline the resolution of such disputes, reduce costs and get back to what it does best: brew more beer.
(Eugene tweets on legal issues and news in the beer industry at @BeerAttorney. He spoke on trademark law issues at the recent Craft Brewers Conference in Denver, Colorado).
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