Look Out for Wisconsin: State Beer Commission a Possibility

WisconsinWashington legislators are considering a bill that would set up a beer commission to promote the state’s beer, a la the dairy industry and its milk marketing: “Got Beer?” Wisconsin sure does, and wants more of it. The author of the bill, Rep. Gary Tauchen has stated that he’d like to make Wisconsin the “Napa Valley of craft brewing.” Now that we think about it, a trip out to pick up some New Glarus sours doesn’t sound so bad.

This Wisconsin initiative is indicative of a broader national trend. Slowly, but surely, it seems states and legislatures are viewing craft brewing as the agricultural-driven industry it is. Many state Departments of Ag already embrace viticulture, and have been instrumental in supporting the growth of the wine industry, so Rep. Tauchen’s “Napa Valley” reference is not misplaced.

Whatever happens in Wisconsin, we can only hope more states get on board and keep improving the climate for brewers operating and distributing within state lines.

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Using Metatags: Do You Know What’s Under the Hood of Your Website?

WWWThese days, having a solid website is a big part of building any brand. But, if the building process of that website is left unattended, the site can actually be a surprising (and maybe sort of ridiculous) source of legal liability, too. We’re talking about metatags.

If you’re not familiar with metatags, they’re a portion of the HTML that sits unseen under the hood of your website. There are a few different kinds. One of them, the Meta Description Tag, is how you can tell Google what short summary to show under your link in the search result. That’s one every business surely wants to use, and it’s not the one that typically gets folks into trouble. That’s the Meta Keywords Tag. Back in the day, the Meta Keywords Tag was used to stuff all sorts of keywords onto your site, so that you’d rank higher in searches.

And, here’s where the law and the real world start to part ways. Way back in the late 1990s, major search engines stopped paying attention to this keyword field. You can guess why—people just loaded their sites with tons of keyword garbage, and it reduced the quality of search results. Now, Google and the other reputable search engines use their own blend of techniques to rank sites, giving rise to countless schools of thought about just how to optimize your website for rank (SEO, or Search Engine Optimization). Anyhow, Google straight up says, it doesn’t consider Meta Keywords.

But, here’s the weird thing. If you drop a competitor’s brewery or beer name into this Meta Keywords field, even though no typical consumer is ever going to see it and it’s not going to affect whether your site does or doesn’t appear in a search, you can technically still get dragged into court under theories of trademark and unfair competition law. Weird, we know. One case on this is Promatek Industries, Ltd. v. Equitrac Corp.

So this all might make you wonder, if the Meta Keywords Tag doesn’t help you on Google and can potentially get you in court, why bother? We think the same way, and savvy web professionals aren’t populating that field. The trouble is, when you’re first starting out as a brewery or small business, there are a lot of people willing to help out—and this includes hobbyist web designers who can put a really nice-looking site together, but who may not know the nitty gritty of the code. As a brewery owner, maybe you even pulled out that dusty HTML Code for Dummies book and built the first version of your website, and hats off to you for that. No matter how your site got put together, the reality is, when you don’t know otherwise, that “Keyword” field can seem awfully tempting to fill up with various terms and phrases—including ones that can pose issues down the road.

If you haven’t done a sweep of just what’s hiding under the hood of your website, it’s worth cruising through that content today. And, it’s also worth taking that Promatek case as a lesson heading forward: sometimes the law just isn’t what you’d expect it to be.

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The Schlafly Trademark Dispute: Why Last Names Aren’t the Strongest Trademark Choice.

Boxing GlovesSt. Louis brewery Schlafly has taken measures over the years to protect their brand. Since they first started brewing in 1991, they’ve successfully sought trademark registration for a couple of word and design marks. Then, in 2011, they filed an application for just the word mark SCHLAFLY in International Class 032 for beer. Although the mark made it through the first phase of the process without worries, it met staunch opposition when it was published back in 2012.

If you haven’t been following the opposition proceedings, then from the outside looking in, Schlafly got hit with some pretty awful news yesterday. Its mark shows as registered on July 9, 2013, yet the file just received the following notation:

Registration no. 4363127 will be cancelled as inadvertently issued and the application restored to pendency due to ongoing Opposition no. 91207225. See TTABVUE for additional information.

Indeed, the opposition proceeding is still pending, and this registration “oops” has swept the story into the spotlight. The short of it, a woman named Phyllis Schlafly (who this author admittedly had no clue about before researching this post) along with her son Andrew Schlafly both initiated opposition proceedings against the brewery…which was founded by a family member. Evidently, they’re lawyers and conservative activists. A third Schlafly, who doesn’t appear to be related, also filed an opposition—Dr. Bruce S. Schlafly. He has a medical practice in St. Louis.

Their collective beef? That the word Schlafly is not eligible for registration because, under section 2(e)(4), it’s “primarily merely a surname.” They contend that the average consumer in St. Louis and elsewhere would think (and does think) Schlafly is associated with them. Phyllis and Andrew aren’t exactly earning themselves white hats in the media, with Andrew reportedly jabbing, “Certainly alcohol has a connotation that is the opposite of conservative values.”

We’ll be following this proceeding and keep you posted here. But an important takeaway is this: if you’re thinking about naming your brewery with a surname, it may be okay, but it’s worth talking through the details with your lawyer first. The test to determine whether a surname-type mark can get strong federal trademark protection is a somewhat fuzzy one, looking at how rare the surname is, whether it has the “look and feel” of a surname, and some other key factors. And, keep in mind, for a fledgling business, there are a lot of other places to invest the cash you might spend fighting out the registration process.

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Keyword Advertising: Is it okay to buy your competitor’s brewery or beer name as a Google AdWord?

MegaphoneFortunately for new and existing breweries, it typically doesn’t take long for resident and visiting beer aficionados to find you and check you out. Of course, there’s value in having a marketing strategy as a part of your business plan, and for some breweries that includes using Google AdWords.

For those not familiar with the practice, ads triggered by Google AdWords are the ones that show up at the top or the side of your search as “Sponsored Content.” There’s also an AdSense program that fills specified spaces on the side of some blogs and websites. Essentially, Google has a formula for which advertisers show up, the advertiser sets a budget, and then the advertiser pays a little bit of money every time a customer clicks on one of these ads. Google makes beaucoup dollars from this, in the ballpark of $42.5 billion in 2012.

If your brewery is off the beaten path or, you feel like, not attracting tourists the way some other breweries around you are, Google AdWords can be an effective way to attract business. For example, if you bought the AdWord phrase “Downtown Seattle Brewery,” you might expect a good dose of new traffic. But, this raises a question that some brewery marketers, aware of trademark law, often wonder about: is it legally okay to buy your competitor’s beer name or brewery name as a Google AdWord? The answer, as with a lot of things in the law, is that it depends. But, under certain circumstances and with certain safeguards in place, this can be a totally legitimate and effective business practice, although it might bug your comrade-in-beers.

The leading case on this, at least in the 9th Circuit, is Network Automation, Inc. v. Advanced Systems Concepts, Inc. There, the court specifies that four different criteria are important in deciding whether comparative advertising like this is okay. And, as with most aspects of trademark law, it really boils down to whether your use of the ad is going to confuse consumers. One good practice, among many, is to make sure it’s absolutely clear that the ad comes from you, and isn’t ambiguous enough that consumers might think it’s actually sponsored or created by your competitor. After deciding that running an ad like this is a good idea for your brewery, we advise shooting the proposed copy over to your lawyer, who can help make sure you’re not inadvertently exposing yourself to unnecessary liability. Even if you don’t plan to incorporate a competitor’s brewery or beer name in your AdWord strategy, it’s still a good idea to have your lawyer comb through the AdWords you plan to use, given that many breweries are named after specific regions, locations, and landmarks that may be very similar to the phrases you select.

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ABV Limits: A Loss for Consumers and Competition Alike

ABV Laws affect what beers come to market—from within the state and outside it—in turn affecting distributors and retail outlets alike.
ABV Laws affect what beers come to market—from within the state and outside it—in turn affecting distributors and retail outlets alike.

If you don’t live or brew in a state with an ABV limit, you may not know such a thing exists. But, for brewers and consumers stationed in the states that do, the limits have a big impact on what you can find on the shelves and put in the brite tank. Just as you know that a brewer, with a brewer’s permit, can’t start churning out something like whiskey, the laws in some states limit the strength of beers you can brew on your permit. In turn, this limits what can be distributed within the states, too.

Given that other kinds of higher-ABV alcohol is available, it seems outdated to restrict the beer market in this way. For starters, these laws discourage out-of-state brewers from coming in state, which means package stores and distributors aren’t doing as well, either. Of course, it also means that interested consumers near state lines are taking their dollars to other states, as this thoughtful article points out.

But, the ones hurt most by these laws tend to be in-state brewers. As they hope to expand their business and begin distributing in other states, these brewers are simply unable to offer as diverse a lineup on the interstate market. In recent years, these caps have been as low as 6%—imagine a brewery that could never, ever craft a beer that crossed that threshold. In fact, at one point, Vermont’s The Alchemist couldn’t even brew its now-epic Heady Topper, which only clocks in around 8% ABV.

We’ve posted recently about the value in a unified brewers voice, and fortunately guilds are starting to successfully change these laws, which is paying off. For example, Mississippi has seen 5x growth in its brewing and distribution industry since shifting from a 6% ABV cap to a 10.2% one in 2012. Still, although we can understand, maybe, a state’s interest in not serving such high-ABV beers at bars and restaurants, where consumers might be behind the wheel soon, it just doesn’t seem right to maintain an all-out ABV cap for beer—even at 10.2%—when liquors in the 30-50% range are already readily available. Hopefully, as consumer interest in all kinds of beers and barley wines continues to grow, we’ll see even more change in these laws, too.

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