The TTB has decided to throw a bone to all of us who have to navigate through COLA submissions. It’s a very big bone.
For years, people have clamored for more freedom in the COLA submission process, and finally they are going to give it to us. The TTB commented that over 146,000 label submissions were submitted last year (10% raise) and that it has finally become too daunting a task to manually review each one. With resources becoming scarce there is one solution – limit the application requirement with more allowable revisions.
The TTB has implemented Form 5100.31, the newest version of the Application for Certification/Exemption of Label/Bottle Approval. The new form comes with an incredibly expansive list of Allowable Revisions, which is a term of art for those label changes that do not require resubmission to the TTB for approval. The list of Allowable Revisions (in a neatly crafted chart with some great examples) can be found here at the TTB website.
If the TTB chart doesn’t help, please check out the wonderful post published by the wonderful people at Ship Compliant, who have kindly highlighted the changes in the new form. Want more help? The legal team at BevLog have put together a nice description of “ARTAL” (an acronym standing for Allowable Revisions to Approved Labels”).
So, if you want to make changes to that age old label but didn’t want to go through another COLA process – it is time to rethink that strategy and get to updating that art.
I will try and keep this one short and sweet. The main reason why it demands little discussion – you, the public. After this trademark suit was raised for discussion on the well-read Washington Beer Blog, the Plaintiffs called the Defendants worked out a deal. The public backlash and disappointment over the dispute got it settled. Nice work, beer fans.
Here is the gist: Coronado Brewing of San Diego, CA sued Elysian Brewing of Seattle, WA for a violation of it’s federally registered trademark in the name “Idiot” as used in the beer classification (IC 032). If you would like to check out the trademark registration, please follow this link. The mark was filed to protect the brewery’s regularly-produced Idiot IPA, a splendid IPA if I may say so myself.
So why did Coronado file? Almost two years ago, Elysian began brewing an IPA using New Zealand Nelson Sauvin hops (my personal favorite) and affectionately called it “Idiot Sauvin.” The name, of course, is a play off the name of the hop and the phrase “Idiot Savant,” which represents autistic humans with extrordinary and exceptional skills. The label showcases a chimpanzee painting a portrait of hops. The beer started out as a special pub offering, but last year became the first installment of the brewery’s new Manic IPA series that shows up in bottles. Those bottles got to California – Coronado’s back yard.
I will take an entire line now to describe my love for both of these beers. As you can see from the Rate Beer ratings (click above links), each beer is highly regarded by the public. I have enjoyed each over the years, and can safely say that they are equal in quality and taste.
Coronado claimed that the beers were confusingly similar, and I would agree that they might have reasonable case since the two beers represent the exact same style. So the brewery decided to file a trademark action to prevent Elysian from using the name.
The trademark suit caught a ton of attention when the language of the filed complaint showed up on Washington Beer Blog. Per usual, Coronado allowed its legal counsel to pen this complaint. That counsel relied heavily on the letter of law and painted a picture of deception and counterfeiting and described the beer as being of a lesser quality. After hearing it from the crowd about these statements, Coronado issued a response on its website saying that the statements made on the Beer Blog were taken out of context, were “language required for a trademark suit” and that the two parties picked up the phone and worked out a deal to put out the fire. It now appears that Coronado and Elysian may embark on a collaborative beer, most likely to mock this situation. Wonderful.
Here are my two cents about this suit – and something that every brewer should recognize:
1. If your filed complaint says something bad – you are saying something bad. A filed complaint is the Plaintiff’s sworn allegations and should always be verified by the Plaintiff. As an attorney, I would never file a suit that my client did not read, verify and approve for filing. Saying that it was only “language required for a trademark suit” is not a defense, and if that language is untruthful then it should not show up in the filing. A legal team should be sure to verify that and look out for both the legal and public interests of its brewery client. I do not blame Coronado for those statements, but I hope that they now understand how important it is to know what goes into your legal filings. Remember, lawyers are lawyers – not public relations experts.
2. Resolution is much easier, when you pick up the phone. Now, it is possible that Coronado called Elysian, was met with resistance on resolution and then moved to the suit. But, I certainly hope that they made a serious effort to try and resolve over the phone. Brewers are in a brotherhood of sorts, and legal disputes have caused virtually nothing but PR headaches for breweries. It is always best to expend all resources to manage disputes behind closed doors before bringing them before the judgmental beer public’s eye. My proposal would have been, “Hey Elysian, we have a TM for Idiot, but we only commonly distribute in one state (California). We would be completely willing to allow you to continue use, as long as you keep it out of California -deal?” To be honest, if they didn’t bite, you’d still have to wonder whether it would be worth the cost, burden and PR damage to go to court.
Whatever was the case, the dispute is now settled. Perhaps we will get a wonderful West Coast IPA out of the whole mess, from two of my favorite IPA producers! Kudos to the two for working it out.