Craft
beer and intellectual property are two of my favorite things.
Recently, they've been running into one another more often, for better
or worse. More broadly, the beverage industry holds many opportunities
for students of IP and information law. Trademark law has recently
brought to light issues over the scope of protection, dueling marks
within registration classes, and plenty of name disputes. Other
interesting areas of law that are involved include commercial speech,
advertising, and administrative law. For
example, does the New York State Liquor Authority have the power to
prohibit a brewery from using a frog giving the finger as its logo? Or to get between me and my Freaky Ice?
At the federal agency level, can the Bureau of Alcohol, Tobacco, and
Firearms prevent a brewery from using the name of its town on a bottle
cap? In 2008, they tried.
Issues can be broken into three loose categories: a company seeking broad protection for a style or drink name, the "did you ask your lawyer first" category, and established brands policing uses of similar marks. The first category traces its roots to the famous 1977 decision finding the use of "Lite" in reference to low-calorie beer to be a generic term. There's been recent chatter in some online forums about conflicts over brewers using the same style of beer in a product's name, for example the many "90 Shilling Ales" on the market. However, none of the disputes have really escalated. Moving over to the mixed drink category, Goslings Rum Company's trademark registration for "Dark 'n' Stormy", a popular mixed drink combining ginger beer and dark rum, caused a bit of a stir (pardon the pun) thanks to a July 2009 New York Times article. Enforcement seems highly impractical, and one blogger suggested there's a naked licensing issue since the recipe is widely available to customers who then request bartenders to make the drink.
It's hard to keep track of all the recent naming disputes in the beer industry. A Belgian brewery recently asserted their US-registered mark for "Brugse Zot" against Pennsylvania brewer Weyerbacher's "Zotten." Rather than fight it out, Weyerbacher changed the name. Another currently pending case involves Bear Republic Brewing Co.'s complaint against Central City Brewing Co. for infringement of their RACER and RED ROCKET marks and associated trade dress. The complaint provides illustrations of plaintiff's marks and defendant's allegedly infringing RED RACER marks. You be the judge. This article on the appropriately re-named Disputin notes a few more similar situations. Maybe law isn't the answer, as the Avery Collaboration not Litigation Ale demonstrates.
Bridging categories two and three is an example that illustrates the importance of fair use and the limits of trademark rights, and the legitimate interests of larger companies with well-known trademarks. New England Brewing Co. got a letter about their Imperial Storm Trooper Stout from a certain Mr. Lucas, who didn't think much of the brewery's (fair?) use. An $8 billion licensing program doesn't take these things lightly. It's not like they were creating a missile defense system or anything. To be fair to Lucasfilm, which just suffered a serious legal setback in the UK, the brewery used more than just a recognizable reference in the beer's name. See photo here.
Finally, we come to the dispute between Monster Energy Drink and Rock Art Brewery over the latter's "Vermonster" beer. While the two companies eventually reached an agreement over use of their respective marks, the controversy got the attention of Vermont Senator Patrick Leahy, whose recently introduced trademark reform bill would require a study of "whether large corporations are misusing the trademark laws to harass small businesses by exaggerating the scope of their trademark protection." At the same time, we can't forget that larger corporations have strong interests and in some cases legal and/or shareholder obligations to enforce the strength of their mark.
We'll be continuing the dialogue and debate on these and other issues in the beer, beverage, and food industry on March 18, thanks to the indispensable work of Student Research Fellows Marc Miller and Kaydi Osowski. We hope you'll join us. The details are below.
-Joe Merante
IP Surprise: Beer & Beverage, Business, and Trademark Reform
Issues can be broken into three loose categories: a company seeking broad protection for a style or drink name, the "did you ask your lawyer first" category, and established brands policing uses of similar marks. The first category traces its roots to the famous 1977 decision finding the use of "Lite" in reference to low-calorie beer to be a generic term. There's been recent chatter in some online forums about conflicts over brewers using the same style of beer in a product's name, for example the many "90 Shilling Ales" on the market. However, none of the disputes have really escalated. Moving over to the mixed drink category, Goslings Rum Company's trademark registration for "Dark 'n' Stormy", a popular mixed drink combining ginger beer and dark rum, caused a bit of a stir (pardon the pun) thanks to a July 2009 New York Times article. Enforcement seems highly impractical, and one blogger suggested there's a naked licensing issue since the recipe is widely available to customers who then request bartenders to make the drink.
It's hard to keep track of all the recent naming disputes in the beer industry. A Belgian brewery recently asserted their US-registered mark for "Brugse Zot" against Pennsylvania brewer Weyerbacher's "Zotten." Rather than fight it out, Weyerbacher changed the name. Another currently pending case involves Bear Republic Brewing Co.'s complaint against Central City Brewing Co. for infringement of their RACER and RED ROCKET marks and associated trade dress. The complaint provides illustrations of plaintiff's marks and defendant's allegedly infringing RED RACER marks. You be the judge. This article on the appropriately re-named Disputin notes a few more similar situations. Maybe law isn't the answer, as the Avery Collaboration not Litigation Ale demonstrates.
Bridging categories two and three is an example that illustrates the importance of fair use and the limits of trademark rights, and the legitimate interests of larger companies with well-known trademarks. New England Brewing Co. got a letter about their Imperial Storm Trooper Stout from a certain Mr. Lucas, who didn't think much of the brewery's (fair?) use. An $8 billion licensing program doesn't take these things lightly. It's not like they were creating a missile defense system or anything. To be fair to Lucasfilm, which just suffered a serious legal setback in the UK, the brewery used more than just a recognizable reference in the beer's name. See photo here.
Finally, we come to the dispute between Monster Energy Drink and Rock Art Brewery over the latter's "Vermonster" beer. While the two companies eventually reached an agreement over use of their respective marks, the controversy got the attention of Vermont Senator Patrick Leahy, whose recently introduced trademark reform bill would require a study of "whether large corporations are misusing the trademark laws to harass small businesses by exaggerating the scope of their trademark protection." At the same time, we can't forget that larger corporations have strong interests and in some cases legal and/or shareholder obligations to enforce the strength of their mark.
We'll be continuing the dialogue and debate on these and other issues in the beer, beverage, and food industry on March 18, thanks to the indispensable work of Student Research Fellows Marc Miller and Kaydi Osowski. We hope you'll join us. The details are below.
-Joe Merante
IP Surprise: Beer & Beverage, Business, and Trademark Reform
The IILP is excited to welcome Rock Art's attorney, Douglas K. Riley of Lisman, Webster & Leckerling, PC of Burlington, VT for a discussion of of his intellectual property practice, which includes many interesting issues related to Vermont's burgeoning "artisan foods" industry. Joining him will be Lauren Mandell, Senior IP Counsel at Diageo North America, one of the largest alcoholic beverage brand owners in the world, to discuss her practice. Professor Dan Hunter will moderate this practice and policy oriented discussion of the trademark interests of small businesses versus those of large brands, how to reform and refine the rules to accommodate both interests more equitably, and the ways that trademark law and litigation affect the results.
The event will take place Thursday, March 18 from 6-8pm in Room W402 @ New York Law School, 185 West Broadway, Manhattan. Please RSVP to Naomi Allen, naomi.allen@nyls.edu
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