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Rethinking trademark disputes

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This morning, Dogfish Head’s Sam Calagione related an incredibly bizarre story at a panel discussion on trademarks, which caused the packed room to erupt in (nervous?) laughter. During the Craft Brewers Conference a few years ago, Calagione was addressing trademarks at a seminar similar to this one, and referred to global conglomerate brewing companies as “culture vultures.” Not long after the conference ended, a corporate jet carrying lawyers arrived in Delaware. The beer company, which Calagione didn’t name, questioned him in deposition for two days as he defended trademarks for his Chicory Stout and Punkin Ale. According to Calagione, he was told “We wouldn’t be here if you didn’t have such a loud mouth.”

That was the highlight anecdote from this morning’s seminar on trademarks in the craft beer industry, led by panelists Calagione, New Belgium’s Kim Jordan, Weyerbacher’s Josh Lampe and lawyer Mark Sorini of McDermitt Will & Emery, which addressed a nearly standing-room-only crowd of concerned industry members. During the seminar’s introduction, Calagione remarked that there are only some-odd-million words in the English language and 1.3 new breweries opening every day: trademark disputes are inevitable.

Yes, and they’re happening quite often in the craft beer industry.

News of trademark disputes between brewers is often greeted with kneejerk reactions—especially on social media—but the panel made a case for why trademark enforcement is so essential to growing a brand, regardless of a brewery’s size.

Sorini likened enforcement to owning a tract of land in the middle of nowhere. If the owner allows people to camp long-term on the land, overtime, the owner could lose the rights. His beery example: A brewery launches a beer called Fatter Tire Amber Ale. New Belgium (which owns the trademark to Fat Tire amber ale) hypothetically does nothing. Next, another company releases Thinner Tire Amber Ale. Eventually, New Belgium files a dispute, but by then a handful of “tire” beers are on the market, diluting the brewery’s claim to the trademark. I’m not a trademark expert—or even a casual enthusiast—but this argument certainly sheds a somewhat fairer light on breweries who feel its rights are being infringed upon. But, the trademark dispute waters are, of course, clouded in ambiguity.

Financially, trademark enforcement is costly business. Calagione noted that Dogfish Head spent more money on trademarks and trademark enforcement in 2013 than it did launching the company in 1995.

The solution? The panel suggested that breweries do a more thorough job researching what names are already trademarked and, in the case there might be a problem, reach out to the potentially offended brewery or seek advice from a legal team. As for names that check out unique? Trademark them ASAP.

 

Author
Chris Staten is DRAFT’s beer editor. Follow him on Twitter at @DRAFTbeereditor and email him at chris.staten@draftmag.com.

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