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.