Posted on | March 5, 2013 | 1 Comment
Back in December, I spent a week down in San Antonio on official business. But official business does not prevent me from enjoying local craft beer. Days are for working, nights are for fun (or most of the time, working).
One evening I ventured out to Freetail Brewing to enjoy what I was told was the best beer in the area. No jokes there. They pour a nice pint. In fact, Freetail pours about a dozen different beers that pair nicely with an incredible pie from their wood oven. Needless to say, it was a good experience.
But I left that place without knowing that their brewer, Scott Metzger, was a fearless proponent of my undying mantra against using legal force to resolve TM debates in the brewing industry. Scott apparently received a letter from hired legal counsel for Steelhead Brewing Co, demanding that Freetail cease use of the name “Hopasaurus Rex.” The response – is a beaut.
I may be extremely late to the party on this story (it has been out for a few years) but it won’t stop me from letting it free. Scott’s insists that a phone call from the Steelhead owner would have nipped this in the bud – as it will almost every TM dispute between brewers. If you learn anything from this, remember how bad the PR might be for the brewery that sends a letter like this one.
Posted on | February 13, 2013 | No Comments
Trademark issues are becoming the single most popular legal topic amongst breweries. I hear the gripe in brewer meetings, client calls and publications across the web. The world of beer is shrinking and the pool of names is shrinking.
Do we have enough words left to continue naming beer creatively? Should we just stick with descriptive monikers like IPA, Pale, ESB and so on? I say nay to the latter. Brewer creativity is at all time high as we are seeing more new styles, style-less beers, and blended concoctions each day. So keep this creativity rolling and let’s figure out a better way to handle it.
Here are a few things that you need to know about beer trademarks:
- Start your journey by researching the use of your intended brand or mark. Check out this prior article that I published here on Brewery Law and be sure to check the US Patent and Trademark Office’s (USPTO) TESS, COLAs Public Search and even RateBeer.com to find out whether their is a prior use of your name.
- The US Patent and Trademark Office no longer distinguishes between beer, wine and spirits. In the past, someone could get a TM registered for “rickshaw” in all three classes. Nowadays, as the disappointing Black Raven/Ravenswood action taught us, the USPTO considers each of these classes “related products” and that a mark in one class will likely cause confusion with the same mark in another class. So, if you find a wine or liquor brandishing your name – it is best to look elsewhere.
- If you are in the clear, you need to register quickly. The law allows a person to file for registration before even using the mark, by filing a 1(b) application with an intent to use the mark. By law, you are entitled to file a total of five (5) individual six (6) month extensions (a total of 30 months) to show the USPTO that you are indeed selling a product using the mark in interstate commerce (better find your favorite over the border store!).
And now for my best advice. This advice can save you thousands of dollars someday – and lawyers might hate me for it. If you have a dispute over a mark that you want to use, or that you currently own, here is what you do: TALK. DON’T SUE. The brewery community is a tight one, even though it continues to grow every day. By simply shooting an email to someone who has a potential right in the mark – or a potentially conflicting use – you can save thousands of dollars, months of time, and respect in the brewery community. Heck, some breweries have even turned these conversations into a collaborative, and very profitable, brew.
There is a time to file a lawsuit to enforce your trademark rights – and it is nowhere near the time you first learn of a potential problem. Breweries are pulling the trigger on a legal letter from their lawyers way too early these days. There is always an opportunity to resolve the dispute well before the letter goes out. Once the legal letter goes out, you immediately put the recipient on the defensive. So please offer an olive branch first, before you pull out the guns.
Your attorney should be more than willing to help you come up with the right words to say in your initial discussion – it just does not have to come on their letterhead.
Posted on | January 7, 2013 | 1 Comment
By now, many of you Washingtonians have probably cried your last tears into your Pliny bottle. That’s right, Pliny and the rest of the Russian River gang have bid ado to the Washington market.
The reason for the departure was put forth in a short letter, well-written by Russian River Matriarch, Natalie Cilurzo. The letter is attached as the image to this post; it’s words are true though a bit cryptic. I have personally visited the Russian River brewpub in Santa Rosa, California. It is a mad house – and it is also a cash cow. The Cilurzos are doing the smart thing for their business by ensuring that their brewpub (where they see the highest profit margin) is fueled with ample beer for the maddening crowds of beer-obsessed fans. The brewery taproom is a vital component of brewery success and Russian River has stated that 50% of their revenue is sourced there.
Russian River is investor-driven (20 deep) and cannot ignore the most profitable component of its business. So finding a way to infuse it with more beer is a no brainer. Some beer channel had to be sacrificed. So how do they pick which one?
Is it the least successful one? Is it the most costly one? Is it the newest one? Not really. Is it the one that most burdens their brand’s development? Yep. Washington was sacrificed not because of a bad distributer; not because of a poor consumer base; not because of underperforming sales. Washington was sacrificed because its distribution rules do not allow Russian River to be certain that its beer gets to the outlets that it chooses.
Washington state law mandates all beer distributors to sell beer to retailers who request it. That means everyone from your local mom and pop shop, all the way up to the new to market superpower – BevMo. The more shelf volume you have – and the bigger your coffers – the more beer you can request and buy. How often can those requests come in from a BevMo? Every day. How about mom and pop? Maybe every week, more like month. Before you know it, the distributor has had to sell its entire stock. No more Pliny.
Russian River is not the first out of state beer manufacturer to say “no thanks” to Washington laws. Big guys like Speakeasy and Allagash had to make similar decisions. In other states, they can control who gets their beer. In other states, its not just self-distributed brewers (like most of Washington’s small brewers) that get to pick and choose to whom they want to sell a beer. So why not focus on those other markets? Can you blame them?
Some might say that distributors have always allocated beer to specific vendors. Very true – not always legal. What matters is whether or not a retailer is being turned down and whether that retailer decides to contact the LCB about it. The bigger the box, the bigger the chance that will become the result.
The Cilurzos are some of craft brewing’s greatest assets. Vinny emails homebrewers his very own recipes and answers just about any question that is tossed his way via email. That’s a good man. But they also run a business. Sometimes the laws make it easy to make those difficult business decisions. Washington just made itself the better cutting candidate.
Posted on | January 4, 2013 | No Comments
First of all, big thanks to my favorite beverage law blog – BevLog – for bringing this to my attention. It appears that the often fearless Daniel Shelton, of famed beverage importer Shelton Brothers, has decided that the “queen mother of dirty words” (thanks Ralph) no longer meets the definition of “obscene or indecent.” Because if that “F – - -” word was, the TTB certainly would not approve of it.
Thanks to Danish brewer To Ol and Shelton Brothers, we are getting a sneak peak at the TTB’s new line of thinking. I am virtually certain that the TTB didn’t simply miss that word in its review – because the same word appears in 4 different submissions for the same brewery.
Well then, its the 21st Century. Go with it, eh?
Posted on | December 10, 2012 | 7 Comments
To all of the wonderful readers on the Brewery Law – thanks. The overwhelming amount of response I have had from brewers around the country has been humbling. I promise to keep on with the blog. It’s been a blast.
In the meantime, I wanted to do something I normally do not: Talk to other lawyers. In my on-going quest to ensure that every brewer has adequate and cost-effective counsel, regardless of location, I am making a call out to lawyers in other jurisdictions. Please introduce yourselves! I am regularly contacted by brewers that I cannot assist due to jurisdictional restraints. And as we all know, there is a serious gaping hole where the Alcoholic Beverage Law community should be.
So please, reach out. Thanks.« go back — keep looking »