Craft Breweries Must Protect Their Trademarks
Craft breweries must pay extra attention to protecting their trademarks by carefully choosing names and logos for their breweries and beers. As Colorado Craft Beer Lawyers, we’ve seen this quite a bit lately, with so many craft breweries now (over 4,300) by recent count of the Brewer’s Association), and many more thousands in planning, there is significant overlap in names, brew tradedress and naming concepts.
A few years back, Michigan-based Brewery Vivant sent a cease and desist letter to Pennsylvania-based Tired Hands Brewing Co. demanding it stop using the name “Farmhands” for one of its beers. In the often admired tight knit community of craft brewers, such action is considered not in keeping with the spirit of craft brewing. However, the law requires you to enforce your trademarks – because if you don’t, you lose your rights in them. In a realistic sense, you’re forced to take action when others use names or other marks confusingly similar to your own. Understandably upset by the prospect of fighting Brewery Vivant, a small brewery like Tired Hands has little other choice.
Similarly, a small UK Brewery by the name of Redwell was recently accused by beverage giant Red Bull of infringing on its name. Red Bull is of the belief that “Red Bull” and “Redwell” sound too similar. What is Redwell to do? In reality, probably give up the fight and find a new name. Like so many other startup craft brewers, it simply cannot afford the fight.
Further, ALL alcohol beverages are considered to be related for trademark purposes. That means a wine and beer by the same name will presumptively create a likelihood of confusion. Fair or not, that is the law. So, if your beer name is the same or similar to an existing wine name in sight or sound – you’ll have to get permission to use the name.
Many of our craft brewer clients face this issue regularly – so many beer and beverage names sound familiar. And that is the problem with the current state of trademark enforcement with the craft brewing industry. Few craft brewers have the resources to properly research and register their beer trademarks in the first place, or prosecute, or defend against claims of infringement in the second.
How Can Craft Breweries Protect Their Trademarks?
- The first thing to do when selecting a brewery or beer name is to do your research. Google searches for names of craft breweries and craft beers is a good start, but it likely will not capture all relevant uses of the name. The USPTO website and TTB COLA registry are great resources as well. Keep in mind that buying a domain name and/or registering your name with your state’s Secretary of State doesn’t mean you have a protected Trademark.
- Register your craft brewery or craft beer Trademark. Register your trademark with the USPTO. While a registered mark is not the “end all, be all” in the trademark law, it entitles the registrant to a presumption of ownership of the mark.
- Use your Trademark. Use it or lose it. Applying for and registering your mark is not enough – you have to use it.
- Know the law – Know your Rights. Small differences in your craft beer’s name doesn’t necessarily mean you’re not infringing on someone else’s trademark. Likewise, such differences do not mean someone else is not infringing on your rights. Understanding what creates a likelihood of confusion is important. It is equally important to know the law and your rights when you receive or send a cease and desist letter.
Brewery Lawyers at LaszloLaw
Our Colorado brewery lawyers are ready to assist in obtaining a Colorado manufacture’s license and Colorado wholesaler’s license . Whether you need to transfer, modify, or obtain a new liquor license, our beverage attorneys will start by addressing your needs and continue to provide guidance along the way. Your goals and bottom line are our priority. Contact the Colorado beverage lawyers at LaszloLaw today to discuss your Colorado liquor license needs.
Updated March, 2017