Posted on | February 27, 2014 | No Comments
We frequently hear from new breweries that would like to register their brewery name but aren’t sure if they’re “allowed” to register it. For them, it’s less a question of whether their mark is confusingly similar to another mark. It’s more of, do I meet the standards for a federal trademark in the first place?
It’s important to know that no matter how much beer you’re brewing and selling right now, even none, there’s a way to get the ball rolling on a federal registration to protect your brewery or beer name. The United States Patent and Trademark Office will look at filings under section 1(a), where marks are already in use, and under section 1(b), where marks aren’t in use just yet. Section 1(b) is often referred to as the intent to use section.
Even if you file under section 1(b), though, you eventually do have to put your mark into use. But, the good news is, the USPTO gives you up to 30 months to start that use. Breweries often take advantage of this provision when they’re in the planning stages, whether for their brewery or an important upcoming beer. The USPTO just requires that you prove you’re actually using the mark within that timeframe, then you get rights all the way back to the date you initially filed (assuming, of course, your selected mark doesn’t face other potential problems during the registration process).
In other words, if someone else first starts to use a mark that’s the same or confusingly similar to yours after you’ve started your filing process, once you perfect your registration, you’d have superior rights. Of course, one of the other big benefits to filing a section 1(b) is that you’re effectively saying, hey, I’m planning to use this mark, and then others steer clear of future problems by picking a different brewery or beer name in the first place.
Posted on | February 26, 2014 | No Comments
Posted on | February 25, 2014 | No Comments
If you have the self-discipline to keep a stocked cellar of beer, good on you. And, if you happen to have a bomber of Midnight Sun’s “M” back from 2006, heads up: you’re sitting on a goldmine. With beer auctions no longer on eBay, Auction Houses are picking up where the online giant left off. And, boy, can it be big business. Recently, we saw that Midnight Sun M barleywine has drawn as many as 1,800 green ones. Yowzers. That’s right around $81 an ounce, a price that’s been holding steady for the last couple of years. Of course, it absolutely stings to be the brewery, watching your brews draw big bucks when you sold them for a reasonable amount in the first place.
Auctioning—as it has been in the wine business—is a reality for breweries these days. And, brewers are starting to embrace the increased consumer interest in “vintage” beer by cellaring more and more of their own. After all, there’s nothing like skipping a visit to the bank but still getting a major cash infusion…just by clearing out the basement!
Posted on | February 24, 2014 | No Comments
The 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.
Posted on | February 21, 2014 | No Comments
****Reiser Legal is not licensed to practice law in Indiana and we cannot provide legal advice with regard to its law. But from time to time we like to comment on things happening to brewers around the globe! So here is some of our feelings on a recent case.****
Today’s the last day of a two-day trial in Indiana over rights to sell cold beer in convenience stores. For those not familiar with the state’s alcohol laws, which are among the country’s most restrictive, Indiana allows cold beer sales from traditional package stores and, to a limited extent, breweries themselves. However, grocery stores and convenience stores are prohibited from selling cold beer. This past year, the Indiana Petroleum Marketers and Convenience Store Association filed a federal lawsuit, alleging that Indiana’s laws were unconstitutional. You can read their complaint here.
We’ll see what the Southern District of Indiana does with the case, but from our perspective, the court is likely to uphold Indiana’s laws (even if they do seem a little outdated). In fact, we’re wondering if the whole lawsuit was a roundabout way for convenience stores to persuade the legislature to bite the bullet and make changes this session—but no bill has been introduced that would affect the laws at issue here.
Although Indiana’s laws may not create an ideal business climate for convenience store operators, or grocery stores for that matter, they just don’t involve the kind of disparate treatment the Constitution is concerned about preventing. Notably, the convenience stores are not challenging the law on dormant commerce clause grounds. They couldn’t, in that Indiana’s law here is discriminating against in-state commercial interests, not out-of-state interests. Rather, the lawsuit is all about the Equal Protection clause of the 14th Amendment, and similar protections built into Indiana’s Constitution.
The convenience stores essentially have the difficult task of persuading the court that the cold beer laws are wholly unrelated in any rational way to a legitimate state interest. The trouble is, the law seems to meet this low threshold, at least from a federal perspective. Limiting access to alcohol by structuring the alcohol market, and even completely prohibiting in-state sales of alcohol, are all within a state’s core concerns and protections under the 21st Amendment. Even absent the additional insulation the 21st Amendment gives states, it’s hard to say that eliminating sales of readily drinkable beer at gas stations—sold directly to drivers—is not rationally related to the state’s legitimate interest in keeping intoxicated drivers off the roads.
Whether we all think the law is outdated is immaterial. We’re sure loads of Indiana consumers would be happy to pick up a case of cold beer during a quick grocery store run (on a Sunday for that matter, but we’ll leave Indiana’s restrictive Sunday laws alone for today). Case outcome aside, what will prove really interesting is a read through the various Amici Curiae briefs filed in this case, revealing the positions of some of the most vocal lobbying groups in the state, including package stores. We’ll report back later as the case progresses.« go back — keep looking »