Referencing Celebrities in Beer Names and Labels: The Ozzy Dispute

Ozzy LabelThis week, Black Sabbath rocker Ozzy Osbourne sent a cease and desist to a Baltimore-based brewery, Brewer’s Art. The letter involves a belgian strong ale the brewery refers to as Ozzy Ale. Had the “Ozzy” use been limited to the name, the C&D might have been a stretch. Here, however, the beer’s label art features an outstretched fist with O-Z-Z-Y spelled across the knuckles, just like the famous Ozzy’s real-life tattoo. The lettering/packaging is consistent with Sabbath-styled art, and the label also includes artwork of bats, a reference, no doubt, to the rocker’s certain onstage stunt.

We haven’t seen this dispute get picked up with too much commentary, and what commentary is out there tends to focus on potential federal trademark issues. It’s true that if consumers would likely be confused as to whether this beer originates from Ozzy Osbourne or is otherwise endorsed/sponsored by the rocker, there’s a trademark issue here. And, given the label art, the trademark claim has teeth. Had the brewery featured artwork of, say, a Black Lab with a story about their beloved childhood pet “Ozzy,” this sort of confusion claim wouldn’t be as tenable—of course, it would be important to know whether Ozzy-the-rocker holds a federal trademark and, if so, in what categories—if not, whether he has entered the beer or related markets. We can also imagine that Ozzy Osbourne’s C&D included a mention of trademark dilution, contending that his “Ozzy” mark is famous and this use on beer, even if unlikely to cause confusion, would dilute his branding firepower.

Potential Lanham Act claims aside, this is a good chance to mention another sort of right involved here that the C&D no doubt referenced: the Right of Publicity. Famous folks, and even you and I, have a right to exploit our likenesses for commercial advantage. One classic case in this area involves Samsung and Vanna White. In advertisements, Samsung was showing its VCRs (we said the case was classic) in futuristic settings. The ad depicted a robot dressed in a wig, gown, and jewelry specifically selected to resemble Vanna White’s hair and dress, and was posed next to a game board that’s instantly recognizable as the Wheel of Fortune game show set. The problem with the ad is that it wasn’t meant to depict just any letter-turning gal in a dress, it was meant to depict Vanna White; Samsung’s ad impermissibly appropriated her identity—at least enough so that the 9th Circuit overturned an earlier summary judgment entry in Samsung’s favor.

Turning to the Brewer’s Art and Ozzy Osbourne matter, it’s possible that Brewer’s Art genuinely wanted to pay homage to Osbourne and thought Osbourne’s spunky personality befit its fiercely spunky brew. But, good faith aside, the name along with the label art arguably went too far, capitalizing on Osbourne’s fame and/or perceived affiliation to help brand and sell the beer. Hopefully, the two sides can work this one out, because the label art is pretty rad, the beer sounds pretty good, and maybe the dispute’s publicity could be a win for all parties involved.

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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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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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Dealing with Cybersquatting Scoundrels

WWWThe world is full of awesome people, but has its share of jerks, too. Among the crustiest of the jerks are cybersquatters. What’s a cybersquatter? Someone who goes out and registers domain names that a business owner would want, then holds the domain names at ransom. It can happen to breweries of all shapes and sizes. Years back, Anheuser-Busch hit the headlines when it dealt with someone who had registered micheloblight.com and was using it in improper ways.

If you’ve never had to deal with a cybersquatter, we hope you never do. Still, it’s worth noting that if someone does use a domain you find problematic, there may be options to consider with your lawyer before, if ever, giving in and paying to transfer the domain. Here’s a very brief overview.

Congress has given trademark owners protection through the Anticybersquatting Consumer Protection Act (ACPA), offering a potential route to federal court. Lawsuits, though, are inherently draining—on funds, emotions, and especially time—but the plus side is that, under ACPA, certain remedies such as money damages and even attorney’s fees can be available.

Outside of ACPA, the Internet Corporation for Assigned Names and Numbers (ICANN) has an established arbitration procedure known as the Uniform Domain Name Dispute Resolution Policy (UDRP). Arbitration has the benefit of being much more cost effective and gets to a result in just a few months. However, the only remedy available is a transfer of the domain name.

It’s worth noting that whichever route a brewery goes (and a brewery could even go down both roads), a trademark owner is only protected from certain improper uses. If someone is using a domain name with good faith, perhaps legitimately offering commentary on a set of brews, it can be harder or impossible to succeed under ACPA or UDRP. And, given the expense involved either way and because breweries typically conduct only a limited amount of business online, it may be most economical of all (although maybe not in principle) just to look the other way.

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