Unfortunate Brewery/Lawyer TM Spat: Do You Know Where Your Graphic Designer Got Inspiration?

Today’s post is short but sweet, and sort of a forehead-slapper. It’s been reported on elsewhere, including by our TM comrade Kenan Farrell, that an Oregon brewery (Full Sail) just sued an Atlanta-based DUI law firm. The claim? Well, trademark infringement. The complaint is on Kenan’s blog for you to read (great resource on Oregon TM law, by the way). The short of it is that the DUI firm had some cute beer coozies with logos made up for the firm that are eerily similar to one of the brewery’s beer logos. In our view, there’s pretty much no way the firm made its own logo without referencing the beer, but we’ll give them the benefit of the doubt because, well, why not? We’ll also note that, to cover bases, copyright infringement seems like another claim to have thrown in there (Visit here and here for some of our past posts on copyright v. trademark). Maybe the brewery didn’t want to fight any fair use fight, adding extra time and argument to the litigation. Still, sheesh, this one’s rough.

Takeaways? We love a good takeaway. For us, we’ll share this one. A lot of folks have been chiding the DUI lawyer for not knowing IP law. Maybe that’s the case, but maybe it’s not as bad as that. Here’s why. A lot of us aren’t as artistically inclined Adobe wizards as trained graphic designers, so we reach out to designers for help. Here, it’s totally possible the lawyer had never seen the beer logo before, but asked his designer to make his logo look like a beer label to be clever. The designer might have taken leeway from there, remembering the beer name that’s like the firm name, and running with the idea. Sure, maybe that didn’t happen here, but that sort of thing can absolutely happen to others, and it does. Having a solid agreement in place with your creative team of choice—and, if that’s in-house, making sure you know where your artist is drawing inspiration—can go a long way toward avoiding snafus or protecting you in the event one comes up. As Kenan F. predicts, and we totally agree, this one is likely to settle out and disappear from the docket pretty quickly. Still, too bad.

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Why Every Brewery Should Care About Copyright Law: Part 2 of 2

Yesterday, we covered key differences between trademarks and copyrights. (There are a bunch more, so we’ll save them as future blog fodder.) Today, we zero in on just how important it is to take a thoughtful approach to copyright protection. With an exceptionally small time and money investment, your registered copyright may well work harder and faster for you than your trademark, should a problem ever arise.

1. You have to register quickly to reap the big benefits.

If you’re like the typical brewery or business, you have all kinds of marketing efforts going on at once. Maybe you have a designer or two working on the next label or a massive overhaul of the website. That means you’re creating copyrightable intellectual property at a surprising rate. The good news is, as we touched on yesterday, all that protectable material automatically gets a sort of “copyright,” and you don’t have to lift a finger or write a check to get it. The bad news is, the rights you get in the material are thin compared to the rights you get if you register the copyrighted works within a statutorily mandated time. What kind of rights do you get if you register?

Here’s the big one. Statutory damages. Unlike with a trademark dispute, where you’d typically be fighting hard to make someone “stop” or “change names,” copyright law sets a dollar amount you get if someone is infringing on your copyrighted work (and can also get them to stop). You don’t have to get out the calculator and try to put a number on just how much a misuse of your work damaged your business. The range is an automatic $750 to a whopping $30,000 per infringed work, and not a penny less. And, if the infringement was willful, the court can award up to $150,000. (If you’ve ever wondered why those music-pirating cases amounted to millions of dollars, consider these numbers times 100 downloaded songs.)

Now, we’re not fans of litigation and we shake sticks only when the peaceful way out isn’t possible. But, if there’s ever a stick to shake, it’s this one. If you have a legitimate concern that, say, your artistic logo has been ripped off in certain impermissible ways, this provision does a lot for you. It’s a lot easier to avoid court altogether and convince a problematic infringer to stop an even borderline-infringing use when you have these statutory damages available. (And, note that copyright law is immediately enforceable nationwide, and no matter whether the infringer is a brewery/alcohol biz or not, whereas trademark law requires that your trading territories cross and typically only applies to closely related businesses).

Changing gears a tad, it’s also important to note here that you can recover attorney’s fees through copyright law. Assuming the polite but powerful cease and desist didn’t work and you have to seek a court judgment, if you win and have registered your copyright, you can potentially get your attorney’s fees paid for—yet another reason the other side may want to avoid court in the first place.

2. Register within three months, but be selective.

So, to get the big sticks we’ve mentioned (and there are more), you have to register early. Wait, and you lose the sticks forever, though you’ll still have enforceable rights—just not as powerful ones. The timeline to get to the US Copyright Office with your registration is 3 months, and the clock starts ticking whenever you publish your copyrighted work in a public way. Posting a new label design on Facebook? That’s publication for these purposes. So, that’s why, if a brewery is not strategic about protecting copyrightable material, it’ll never get the full benefit of copyright law.

It’s our position that it’d be a waste of time and money to attempt to register every copyrightable thing your brewery puts out. That doodle you made on the back of your coaster? Well, it’s copyrightable. The doodle isn’t important, but your brewery’s logo and beer labels are. If it’s important to your business, brand, or brewery identity, that’s the material you want to best protect. That’s the material to copyright, and it’s material that might extend beyond what’s protectable with a trademark. Even your tap handle design, though it’s functional, could have protectable aspects. By deciding early on what sorts of things you want to protect, it’s best to come up with a game plan to protect them, so the three-month shot clock doesn’t run out.

3. As part of your strategy, know what you own—or how to own it.

This is an area of copyright law that even the savviest business owners can slip up in. Even though your brewery has paid an artist to make something, unless that artist is on your staff and it’s a typical part of the person’s job, the copyright doesn’t necessarily belong to you. You’d have a right to use it, sure, but all those important rights we’ve covered would belong to the artist. This is a problem, because the artist (and we hope they wouldn’t) could make all sorts of uses of the artwork you thought belonged to you. Depending on the kind of use, trademark law might stop them, but there are all kinds of uses TM law wouldn’t help.

A way out of this is to form a particular agreement with every artist who is going to make those important kinds of work you’ve identified. And, for work that’s already been made, a brewery could sweep those copyrights under your control by requiring that the artist assign their rights to you. Only certain kinds of language will work in these sorts of agreements, so it’s important to connect with your IP-savvy legal advisor and get it right.

Valuable IP can be affordable to secure, it just takes planning.

For breweries in the planning stages right now, it’s early enough to form a proactive strategy to protect your copyrightable and trademarkable material, making sure to collect those statutory “sticks” to best protect all your essential intellectual property. Even for existing breweries, it’s not too late to right the ship and make sure copyright is a part of your business plan as new beers and marketing campaigns unfold. Here at Reiser Legal, we believe that just as you take a measured approach to growing your business, it’s worth giving time and thought to make your intellectual property assets as valuable as possible. To that end, we offer affordable IP packages that cover both your trademark and copyright needs, and we can also help you form a proactive legal branding strategy to best achieve your business goals moving forward.

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Why Every Brewery Should Care About Copyright Law: Part 1 of 2

At this point, you know trademarks are important. But, despite the common misconception, a trademark is in no way a substitute for a copyright. The reverse is also true. Today, in part one of this two-part post, we take on an important question many of our clients approach us with:

What is the difference between a trademark and a copyright?

First, we’ll review the one everyone’s somewhat familiar with, trademarks.

What is a trademark?

Trademarks are all about protecting consumers. In operation, they also protect businesses, but the heart of trademark law is about consumers. Trademarks protect consumers because a trademark designates a unique source. When you look at a Coca-Cola can, you know it comes from Coca-Cola. If anyone could use the Coca-Cola logo and that red-and-white packaging, then it wouldn’t mean anything. Consumers would have no idea whether a product they bought was the secret formula the Coca-Cola company has been protecting all these years, or some cheap knock-off. Maybe it was Pepsi in disguise. Thanks to trademark law, when you go out and buy a bottle of Coca-Cola, you know exactly the quality of product you’re getting, good or bad, and you recognize who makes it. Without trademark law, the market would be a really uncertain mess.

Again, trademark law cares most about consumers. For the most part, it seeks to prevent the likelihood of consumer confusion. That’s why we also don’t see Coza-Zola out there on pop cans. And, in another sense, it’s why you can’t go open up the Coca-Cola Brewing Company. Consumers would be confused as to whether there was an affiliation of some kind. In fact, Coca-Cola has reached such fame that it’d be downright problematic if the word Coca-Cola was used by anyone else on any other kind of good . There’s a branch of law called trademark dilution that addresses that. But, cutting to the chase, the touchstone inquiry in a trademark law matter is whether consumers are likely to be confused. It’s why someone can’t open the Sierra Nevada winery tomorrow. It’s why you can’t go sell frozen foods or start a restaurant under a brand name of TGI Fundays. In the first example, it’s not exactly the same sort of good or service, and in the second example, it’s not exactly the same brand name we all know, but it’s all just too close. But, if you wanted to go start making high-tech computer chips under the Sierra Nevada name, you may well be able to do it. Assuming you saw a completely different logo, no green about it, would you think those high-tech computer chips came from the company that brought you that pale ale? That’s essentially what the US Trademark Office is going to be considering when they decide whether to issue a trademark, even when the same name is already registered on a different kind of goods or services. Is the ordinarily prudent consumer likely to be confused?

So, how do you get trademark protection?

Generally, you automatically get a mini sort of trademark protection whenever you open a business and start engaging in commerce. But, you can seek broadband nationwide trademark protection when you start engaging in commerce across state lines (in a brewery’s case, selling beer out of state) or you plan to engage in that sort of commerce within a few years. Again, though, a trademark only protects your business from any subsequent branding uses that would confuse consumers. If a brewery opens up with a name that has a word in common with yours, that might not be a problem, depending on the word. If you’re New Belgium or a consumer familiar with them, we expect Zen Belgium Brewing would feel a lot different than Old Belgium Brewing. Three letters, one word, big differences in overall consumer impression. But, let’s move on.

What is a copyright?

In contrast to trademark law, copyright law is concerned with protecting original works of authorship (that are fixed in a tangible medium of expression, but we’ll keep it simple for now). The deal is, once you create something, you’re in the realm of copyright law. But, the thing you create has to be more than just an idea, it has to be creative, original, and actually expressed. Your brewery’s name in Helvetica font? Not going to cut it. A highly stylized logo design with graphic elements? Now we’re talking. The artwork on your beer cans is probably protectable. That clever description you wrote about your beer? In the realm of copyright law. That beer name you just came up with? Nope, that’s trademark law. That Kickstarter promo video you just put together? Copyright law. Whereas trademark law is worried about consumers being confused about where things come from, copyright law wants to protect art/creativity by keeping creators from being completely ripped off. If you wrote a song and anyone could go cover it, or stick the chorus in their song and make millions of bucks without paying you a dime, we’d be worried you’d stop writing songs. You get the idea.

As you can start to see, trademark law and copyright law concern different things, but there can be some overlap, too. For example, if Pepsi started running holiday ads with pictures of real-life polar bears on its packaging, we’d mostly be in trademark land; polar bears, though usually cartoons, are a Coca-Cola branding thing. If Pepsi went and found last year’s Coca-Cola holiday ad and just had its graphic designers switch every Coca-Cola logo with a Pepsi logo, we’d still have a foot in trademark land but we’d really be in copyright land, too. Exact copying or the creation of something substantially similar, that’s what copyright law is about. And, copyright infringement can be a whole heck of a lot easier to prove than consumer confusion.

How do you get copyright protection?

The great thing about copyright law is that you instantly get nationwide protection. Your kid makes a finger painting? Bang, there’s copyright protection. That email you just sent? It’s actually copyrighted. But, here’s where businesses, breweries, and artists slip up, and it’ll be the main focus of the second part of our post tomorrow. Although copyright protection happens automatically, there are major benefits to taking active steps to protect your copyrighted works. Say you have a killer beer label design. It’s automatically protected by copyright, but does your brewery own the copyright or does it actually belong to the graphic designer you hired to make it? Probably the latter, and that can be a scary thought. And, putting aside the important issue of ownership, if you don’t actively and quickly register your new copyrighted works, which is mega-mega-mega cheap to do, you miss out on the most substantial perks that might well nip improper copying in the bud and, at any rate, make your case so strong that anyone ripping you off would rather pay up front to settle with you than take it into court. More on that tomorrow.

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Hard Cider is Big Business and Anheuser-Busch Knows

Apples!

We all know the cider biz is booming. Boston Beer Co. managed another feat of tapshare domination when it released Angry Orchard a couple of years back. And, Anheuser-Busch InBev is more than eager to get into the apple game’s big leagues. Their Michelob Ultra Cider wasn’t exactly a home run, and they’re trying again with the Stella Artois Cidre (no typo, it’s just fancy). Rumor is, 2014 will bring yet another brand of hard cider from the InBev crew, too: “Johnny Appleseed” brand. (Wonder how the small cider operation Chapman’s Brewing, also named for Johnny, feels about InBev’s new namesake?)

Still, just how eager is ol’ InBev to get in on the boom? As proof of their bit-chomping, or maybe just their superbly proactive approach to trademark monitoring, Anheuser-Busch has opposed the recently published mark “Pressman’s Gold” (Serial No. 79126512) for a brand of cider from the makers of Yellow Tail wines. Their beef? It’s not because InBev has a similar mark. Rather, they’re looking out for their future interests, and the rest of ours, too. The “Pressman’s Gold” mark didn’t disclaim the word “gold.” Just as a brewery doesn’t and couldn’t claim exclusive rights to the phrase “pale ale,” InBev thought this registration went too far, potentially locking up a descriptive term that everyone should be able to use. Does the future hold a Cidre Gold? Well, we’ll just have to wait and see.

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More on Trademarks: The Fallout from the “Apocalypse” Dispute

Change!

A couple of weeks ago, two Oregon breweries ended at least their portion of a multibrewery dispute over the word “Apocalypse” and beer. We would say resolved, but that word seems to have a happy connotation. Happy, this was not. What was once “Apocalypse Brewing Company” in Medford, Oregon is now “Opposition Brewing Company” (and, yes, the new name was inspired by the passion-fueled litigation).

You’ll find here a frustrated blog post from the owner of the brewery-formerly-known-as Apocalypse, which is worth a read. And, there’s some good reporting on this matter over at beerpulse, so go check that out.

But, here’s what we wanted to point out. As of right now, there doesn’t appear to be a federal registration filed for the “Opposition Brewing Company” name. Huh?

Maybe Opposition felt pretty beaten down by the legal system, so much that they just don’t have the fight to deal with it. Or, maybe the USPTO has a temporary reporting lag, so their timely filed registration isn’t showing…then again, we filed stuff a couple of days ago, and it’s already up.

Here’s the rub. Absent Opposition’s filing, anyone in the United States (or out of it) could be completing their federal registration, this very moment, for rights to use “Opposition” on beer, wine, whiskey, fizzy soda, whatever. It doesn’t even matter if they picked Opposition just because they heard of this dispute and thought the name was cool. In fact, even if someone never registers but starts using the name, it’s still important. The bottom line? Every second that ticks by without a filing increases your risk of a future trademark dispute.

If you’re a brewery out there that’s been stung before, don’t forget about the beehive—register!

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