Do the Right Thing
Even if a label resonates well with the public, however, corporate America might have a bone to pick with you. With an estimated 13,000 beer brands on the market today, it’s inevitable that cases of trademark infringement will arise.
Sometimes breweries ought to know better. Back in the late 1980s, one faltering Midwestern regional tried to revive its fortunes with a brand called Korr’s Original Steam Beer. The only reason Fritz Maytag (who zealously defends his trademark Anchor Steam) didn’t voice his objection is that another larger brewery, by the name of Coors, pounced first.
That brewery is long defunct. Getting sued by two different people is never a good business strategy.
Usually, however, trademark infringement is inadvertent. And sometimes it can be settled amicably, without resorting to lawyers at 10 paces. In 2001, Adam Avery of Avery Brewing Co. in Boulder, CO, and Vinnie Cilurzo of Russian River Brewing Co. in Santa Rosa, CA, realized that both of them were making a strong, Belgian-inspired ale named Salvation. There was, however, no overlap in marketing territory (at that time anyway), and “we realized that neither of us had any issue with it,” says Avery.
In fact, the two brewers decided to create a new brew by blending their respective beers. During an evening of much convivial elbow-bending at the Russian River brewpub, Natalie, Vinnie’s wife, came up with the name Collaboration Not Litigation. The two beers that share the name Salvation—Avery’s is a hoppy, golden ale, Cilurzo’s is darker, more of a dubbel—”blend extraordinarily well,” says Avery. “They create a completely different beer.”
Batch No. 4 of Collaboration Not Litigation was bottled at Avery’s brewery and released this past winter. The two brewers continue to brew their own versions of Salvation and remain fast friends.
In such trademark disputes, the party claiming injury isn’t always another brewery. Bethlehem Brew Works, a brewpub in Bethlehem, PA, used to brew a strong, spiced ale called Rudolph’s Reserve for the Christmas holidays, bottling a small amount. The label depicted Santa Claus saddling up the famous red-nosed reindeer popularized in the 1949 Gene Autry song. Just before the holiday season in 2003, Bethlehem Brew Works received a cease-and-desist letter from a Wilton, CT-based firm called The Rudolph Co. L.P. and its merchandising agent, Gt Merchandising and Licensing L.L.C. The company claimed a trademark to “any design of a reindeer with a shiny nose and the design of a red-tipped nose on any fanciful deer-like animal.”
Jeff Fegley, the brewpub’s owner, changed the color of the reindeer’s nose from a bright red to dull black and tweaked the name ever so slightly to Rude Elf’s Reserve. The 2009 version of the beer won a bronze medal in the Herb and Spice or Chocolate Beer category at the most recent Great American Beer Festival.
Some trademark disputes can reach almost absurd levels. You wouldn’t think that you could trademark an animal, would you? But Bjorn Nabozney, co-founder of Big Sky Brewing Co. in Missoula, MT, fought a 10-year battle with the Canadian brewer of Moosehead that began when Big Sky attempted to trademark its flagship beer, a brown ale named Moose Drool. Attorneys for Moosehead claimed that the brand was creating “confusion” in the marketplace.
We were spending thousands of dollars a month; we had a team of five lawyers,” says Nabozney, who decided to settle three years ago. Under the terms of the agreement, Big Sky agreed to limit sales of Moose Drool largely to states west of the Mississippi.
You would think that the average consumer could tell the difference between a beer and a women’s fashion magazine. Yet the publishers of Elle, recalls Adam Avery, brought legal action over a brand called Elle’s Brown Ale, named after the brewer’s late Labrador retriever. Avery resolved the dispute by adding an “i” to make Elle “Ellie.”
We were in the right,” says Avery, “but I didn’t want to spend time in court. Some people might say, ‘I’m going to fight tooth and nail,’ but not me. The problem with trademarks is that you’ve got to spend a lot money to keep them.”
Matt Nadeau, president of Rock Art Brewery in Morrisville, VT, decided enough is enough when Hansen Beverage Co., a large soft drink firm based in California, threatened to sue over one of Rock Art’s brands, an American-style barley wine called the Vermonster. Hansen claimed that the beer brand would “create a likelihood of confusion” and “dilute the distinctive quality” of Monster Energy Drink, one of Hansen’s major labels.
Nadeau found the claim totally worthless. His research revealed that there were already 25 alcoholic beverages registered with the TTB that included the word “monster” in their names. Among them was Brooklyn Brewery’s The Monster barley wine, which preceded the energy drink. “They never had a problem with that.” Nadeau believes that large companies, in monopolizing trademarks, often start by bullying the littlest guys first so they can build up a folder full of “precedents” that they can present to a court.
Rather than give in or let himself become bankrupted by attorneys’ fees, Nadeau sent out a plea for support over the Internet. A local paper, the Stowe Reporter, picked up on the David vs. Goliath angle of the story, and soon media across the country, from the Boston Globe to the Associated Press, were following suit. “We got over a million tweets within days,” says Nadeau.
A big swell of negative publicity for Hansen built up,” he relates. He got emails from stores as far as away as Long Island―”stores we didn’t even distribute to”―saying they were pulling Monster Energy Drink from their shelves in protest. Eventually, Hansen was forced to back down. The corporation agreed not to challenge Rock Art’s trademark as long as the microbrewery agreed not to get in the energy drinks business. That was a compromise Nadeau had proposed at the beginning of the dispute, but which Hansen had initially rejected.
A Small Victory
It’s not over yet. In the aftermath of the controversy, Vermont Sen. Patrick Leahy, chairman of the U.S. Senate Judiciary Committee, introduced a bill (S. 2968) calling for a review of current trademark law and the litigation tactics used by large firms to exploit the system.
We saw a high-profile case… in Vermont last year involving a spurious claim against Rock Art Brewery,” wrote Leahy in a press release. “When a corporation exaggerates the scope of its rights far beyond a reasonable interpretation in an attempt to bully a small business out of the market, that is wrong.”
The bill should be law by the time you read this. What will come out of the study can’t be predicted, but as Nadeau boasts, “Vermonster was saved by the people.”
