The Skinny: Coppertail Brewing Co. v. Copper Top Brewery (Filed 10/29/2014)

The latest brewery v. brewery trademark dispute in district court. This one is between Florida breweries—the registered Coppertail Brewing Co. on the gulf side in Tampa and the unregistered soon-to-launch brewery Copper top on the Atlantic side in Wellington, FL. Docket No. 8:14-cv-02727
The latest brewery v. brewery trademark dispute in district court. This one is between Florida breweries—the registered Coppertail Brewing Co. on the gulf side in Tampa and the unregistered soon-to-launch brewery Copper top on the Atlantic side in Wellington, FL. Docket No. 8:14-cv-02727

Coppertail Brewing Co., LLC v. Copper Top Brewery, LLC is the latest brewery v. brewery trademark dispute to spill over into federal court. This brewery trademark matter is happening in Florida district court, the Tampa division. According to the complaint, plaintiff Coppertail is a Tampa-based brewery and defendant Coppertop is also a Florida brewery based in Wellington, FL which is on the Atlantic side, aiming to open in Boynton Beach. The complaint was filed on 10/29/2014 and, for those watching on the sidelines, you can find the documents and follow it at Docket No. 8:14-cv-02727 (M.D. Fla.).

We don’t have to spell out the concerns here. But, we will paint the timeline, for those curious about the ins and outs of the dispute. Plaintiff Coppertail filed a trademark on October 23, 2012 and obtained a registration. Per the complaint, Defendant Coppertop is a brewery under construction. It’s a straightforward complaint, alleging trademark infringement and unfair competition under the Lanham Act, while also including a count of trademark infringement under Florida common law. Further, as we always like to report, the complaint does state that the plaintiff Coppertail tried to resolve this matter privately with the defendant start-up brewery.

Also, we’ll note for the detail-oriented that although the defendant is “Copper Top Brewery, LLC” in the caption, the complaint refers the defendant as Coppertop throughout. Indeed, based on the brewery’s own promotional materials and recent articles, including a feature article today (10/31/2014) in the New Times Broward-Palm Beach, the defendant does appear to be using the “Coppertop” mark and not “Copper Top” as it appears in their LLC, Copper Top Brewery, LLC. Notably, too, take a look at the logo materials, with the emphasis on the “C” with quite similar lettering—with the defendant’s C almost giving the same fish tail like appearance that makes up the Coppertail mark.

The key takeaway for us, as always, is the importance of filing an intent-to-use trademark before getting too far along in building out the brewery, getting notoriety in featured articles, and investing too much—financially and emotionally—on a branding direction you may lose. No one wants to be in court, especially not at this early stage of opening a brewery, and taking proper steps to clear and then file a trademark well before launch will go a long way in giving a fledgling brewery brand confidence moving forward. See our notes on trademark clearance here, and here.

As always, we’ll let you know of any notable developments pertinent to the case.

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Is Your Trademarkable Beer Name Distributable?

It’s no secret, I’m a big believer in proactive brand protection. To that, I’ve been pleased to see breweries get out in front of trademark issues by asking for early clearance reports for their new beer names, then filing a 1(b) trademark application to secure the name. It’s a big part of what I do at Reiser Legal.

However, I wanted to flag one issue for those working through some potential beer names with the beer attorneys. I’ve recently noticed a number of published trademarks that appear to tout the effects of drinking alcohol. There have been word marks and then also boundary-pushing design marks as well. Bear in mind that, even if a mark makes it past USPTO’s initial review, to get the mark to register, a brewery would eventually have to put that mark into use in interstate commerce. For most breweries, the way to prove that use is packaging and shipping across state lines. But, to package and ship across state lines, you’ll need a TTB-approved label (Certificate of Label Approval, or COLA for short)—even some states require a COLA before getting product into retail in state. Notably, TTB has strict labeling requirements and rejects labels that go too far in touting alcohol’s effects.

In other words, even if a brewery can obtain a federal Notice of Allowance for a beer name, federal (or even state) labeling laws might not allow the brewery to package and ship that beer anywhere but the brewhouse, jeopardizing the ability to actually get that trademark to register. Side note there, as beer-blogging-brethren have noted, TTB has been looser on animals who are appear under the influence than humans.

Keep in mind also that TTB has other bases to reject beer names / labels, and even if they don’t, a state authority may find a boundary-pushing mark or design objectionable. Designs or marks that would draw kids in, for example, are problematic at both levels—which might make some branding angles hard to build out, even if a brewery gets the trademark for the direction it wants its brand to go. Here at Reiser Legal, we love the DIY ethic that pervades the brewing industry. However, sometimes shooting a branding direction to a beer attorney is worth it, before doing too much building out and, worse, investing in a trademark direction that has uncertain label approval chances.

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How Much Does it Cost to Start a Brewery?

For Doug and I, there’s little more fun than helping out soon-to-be brewery owners very early in the planning process. Doug’s family owns a brewery in Asheville, North Carolina, so he’s been right there, and like many readers here I’m a proud homebrewer with my own aspirations.

When we get on a call to discuss a start-up brewery’s plans, a topic that often comes up is the cost of opening a brewery. That’s understandable, and apart from forum fodder and some speculation, there aren’t too many hard numbers tossed out there to help breweries in general business planning. So, to benefit some hopefuls and help fuel business planning, here are some starting-point figures. Of course, take these for what they are. There’s no rule, and plenty of creative business models work, with breweries getting their doors open (and rapidly expanding) for less than what’s noted. However, it can help to see numbers to get a sense of reality, as a starting point for that business plan.

Here are some general minimum brewery start-up costs:

Nanobrewery Start-up Costs: $50,000

7bbl-10bbl Production Brewery Start-up Costs: $250,000

10bbl-15bbl Brewpub Start-up Costs: $500,000

Packaging and Production Brewery Start-up Costs: $1,000,000

These brewery start-up figures are helpful estimations—but shouldn’t be discouraging. Breweries have achieved significant fundraises, where the founders put in very little (to none) of their own start-up capital. The market is not yet showing signs of stopping, and there are likely many investors out there who are curious about the beer world and willing to jump onboard, so long as a solid business plan and investment structure is in place.

Ultimately, with a savvy CPA and experienced brewery legal team on a start-up’s side, a brewery can get the pieces in place to make a great pitch, and without too much up-front expense either.

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Washington State Beer Label Requirements

So, you’re ready to package. Awesome. What should be top of mind when preparing a Washington-ready beer label? There are a few things to note but, in general, compliance with TTB regulations will get you close to compliant with LCB. However, there are some extra Washington laws and regs to keep in mind.

If a Washington brewery is ready to package and sell—or an out-of-state brewery is interested in beer distribution in the State of Washington—there are certain labeling requirements set forth by the Washington legislature and the Washington Liquor Control Board (LCB). Fortunately, the beer labeling requirements are not particularly cumbersome. Notably, LCB’s direct label approval is not required. However, LCB does require that in-state breweries and out-of-state breweries alike obtain a federally approved label, known as a Certificate of Label Approval (COLA) before getting beer on the shelves. To be ready to ship or distribute beer in Washington, the producer must submit a copy of the federal COLA to LCB and, it goes without saying, have proper licensure. If a brewery makes changes that require a new label approval from TTB, the brewery likewise will have to submit that new label to LCB.

As for Washington’s own beer-labeling requirements, if a brewery is complying with federal regulations, the brewery is likely to be okay under LCB’s approach. However, the LCB does reserve the right to deny any label that doesn’t conform to their basic requirements and rules. What are those? Things you’d expect, and things that the Alcohol and Tobacco Tax and Trade Bureau (TTB) mostly already requires (though LCB and TTB may disagree about some subjective calls). No label can be misleading, you can’t make labels that especially appeal to children, and if you’re going to show adults on the label, the depiction has to be dignified and can’t promote illegal consumption of liquor. There are some other ones, so be sure to review the relevant regs and statutes, or shoot the proposed label to your beer lawyer for a quick review before submission.

As a reminder that regs can be quaint at times, LCB expressly prohibits subliminal messaging on labels or in beer advertising. So, for you crafty cats, make sure there’s nothing up your sleeves.

Last and maybe most notably of all, if a brewery wants to ship strong beer in Washington (that’s over 8% ABV), the brewery must include the ABV amount on the label. This differs from federal requirements, as TTB does not require an ABV statement. Something for producers to keep in mind.

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New Rogue Lawsuit: Rogue v. Gone Rogue Pub – Filed October 14, 2014

A brief interruption to our dormant commerce clause constitutional beer law nerd-out, to bring you some breaking brewery trademark news. Rogue may have settled one trademark lawsuit, but yesterday they entered another. The case is captioned OREGON BREWING COMPANY v. SCOUT LLC, dba GONE ROGUE PUB and it’s 1:14-cv-00439 for those looking on the docket.

We’ve reported before about Rogue’s litigation against Rogue’s Harbor Inn, which settled out on August 11, 2014 (see image for details there). Yesterday, on October 14, 2014, a little over two months since getting that dispute out of the way, Rogue’s back before the bench. This time, Rogue has filed a complaint in federal court against an Idaho bar that opened in 2012 under the name “Gone Rogue Pub.” Rogue has its concerns, given they have a registration in restaurant services, on beer, on beverage glassware, and on clothing.

In Rogue’s complaint (again, as always, under Oregon Brewing Company—speaking of, glad they picked a more defensible trademark for their branding), they allege that Gone Rogue pub has some of Rogue’s own branding up inside the bar, that the word Rogue appears on the pub’s branded glassware and coasters there, and to throw salt in the wound: the pub has specifically identified serving Rogue beer in press releases.

Cheers to Rogue, as their complaint states that Rogue reached out to Gone Rogue Pub early on in 2013 and tried to get some kind of coexistence rolling, so the pub wouldn’t have to completely change its name. That was a year and a half ago. Per the complaint, the owners directed Rogue to their attorney, and the attorney didn’t respond to Rogue. Then, a few months ago in August (the same month the Rogue legal squad finally took a breather after Rogue’s Harbor) talks/negotiations were not successful when Rogue again initiated them.

Given the press release and also the use of Oregon Rogue-branded stuff in the bar, the court might infer some bad faith here, which would not be good news for Gone Rogue Pub. Also, I would imagine Rogue’s olive branch is no longer leafy and green after being forced to draft and file this complaint, instead of being able to quietly hammer out an agreement.

Below are the counts in the complaint. We’ll see what sticks, unless Gone Rogue Pub comes to the bargaining table and it settles. Stay tuned to the Brewery Law Blog, as we’ll keep you updated on this one.

(15 U.S.C. § 1114)

(15 U.S.C. § 1114)

(15 U.S.C. § 1125)


(I.C. §§ 48-601 et seq.)

(I.C. §§ 48-500 et seq.)

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