Here’s the skinny on why proactive brewery trademark practices are a must. This is as brief-yet-thorough of an overview on brewery trademark law (and why it’s important) as I can muster. The takeaway is the same: (1) clear early and often; (2) file immediately; (3) regularly monitor. Here goes:
Brewery Trademark Law Explained
Federal trademarks are a first-to-file game and they give nationwide rights. If brewery #1 sells branded beer without a registration, brewery #2 (or winery, distillery, meadery…you get it) can register the same or similar name at any time, even if brewery #2 picked the name solely because they saw brewery #1 using it and liked it. Very technically, brewery #2 would take those trademark rights subject to the trading territory brewery #1 had established on the date brewery #2 filed. Realistically, it costs a lot for brewery #1 to enforce even that limited territory it would have priority to—and brewery #1 could never expand beyond that limited territory without risking a cease and desist / litigation / name change, so those so-called priority rights become less attractive. Looking at it another way, even if no one officially registers brewery #1’s beer or brewery name, other breweries would be free to adopt that unregistered name and establish similar limited rights in their respective territories, with no issues unless those territories cross. Brewery #1 couldn’t do anything about that.
Oftentimes the quiet name changes we see aren’t because a brewery failed to be first to market, but first to the register, so brewery #1 changes the name because they’re no longer interested in a brand name if it means they can only sell under the brand in one state, or one pocket of one state.
The takeaway is that, today, if a brewery cares about rights to a beer name, brewery name, series name, what-have-you, best practice is to:
- Proactively seek a trademark clearance report for each and every beer or brand name (and, of course, the overarching brewery name) the brewery plans to launch. We run these daily at a low flat fee.
- If the results are clear, file immediately. A brewery need not be using the mark to file.
- Regularly monitor to make sure no one is using the same or similar mark.
That’s that—brewery trademark law in a nutshell.