Five years ago, the craft beer trademark was an afterthought. Not anymore – and for good reason. One of the first things new craft beer clients ask me is whether they need to trademark their craft beer name. Today, a startup craft brewery must understand and consider its craft beer trademark right out of the gate. With a crowded (to say the least) marketplace, an original beer name is increasingly difficult to develop. Fortunately, if you know some basic rules, you can protect your brand and save money.
What is a Trademark?
“A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.” – uspto.gov
Trademark vs. Tradename
A tradename is a name that a business uses for trading commercial products or services. It is often registered with the Secretary of State. Registering your tradename with the secretary of state does not equal registering your craft beer trademark. Your legal name may be Billy’s Craft Brewery, LLC while people know you as Billy’s Craft Beer. Billy’s Craft Beer is your tradename. And, it follows, your trademark, i.e., consumers identify your product by that name.
What is your Craft Beer Trademark?
Knowing your trademark is critical. If your name is Billy’s Colorado Craft Brewery, what part of that name is trademarkable? How are you going to use the name on the product itself? “Billy’s” ? … “Billy’s Craft Beer”? How you use the name on the product is the proof that you are using the name to identify the product as your product. Your craft beer trademark is the mark as it appears in use.
Trademark clearance is basically an availability investigation. This is a critical step in the process that can save you money and heartache in the long run. Before you pay a graphic designer to create a cool Billy’s Craft Beer logo and eye catching stylized font, you ought to know whether the name is available or is likely to infringe on someone’s existing mark. While you can search on your own (uspto.gov, google, etc.) a skilled searcher is the best way to ensure you’ve covered your bases. You will want to consider a lawyer for this task. Its so important to get this right – as it will save headaches and heartaches down the road.
Next step is to register your mark. This absolutely can be done without a lawyer. However, mark sure you know what you’re doing. You’ll need to know in what class of goods to register your mark. Each class of goods will cost you around $275.00 – with a few trademarks things can get expensive quick. Do you really need to trademark your name for t-shirts, hats, and bottle openers? Unless you’re in the business of producing those items, probably not worth your money at this stage. Your craft brewery is in the business of producing beer and that is what you need to protect.
“TM” vs. ®
Your trademark does not have to be registered on the Federal Register to provide protection. Simply using your mark in commerce affords some “common law” protection. Using the “TM” prior to registration is a great idea. It alerts the world to your trademark. While powerful, there are limitations. Once you obtain registration, change the “TM” to the ®.
Craft Beer Trademark Enforcement
Here we go. Craft brewing is a world of beards, beer and handshake deals – few things make craft brewers more uncomfortable than enforcing their trademarks against other craft brewers. It seems far too “corporate” for most and invites much conflict. However, enforcing your mark is not really a choice if you value your property. The law requires you to “use it or lose it.” If you don’t enforce your mark against infringing uses, you eventually lose your rights in the mark. Cease and Desist letters, co-existence agreements and concurrent use agreements are some of the terms you’ll need to be familiar with and which will realistically require the assistance of an attorney.
Of course this is a very high level overview of the craft beer trademark process. We welcome the opportunity to help you evaluate your trademarks and work with you to develop an efficient strategy to protect your trademarks.
Colorado Brewery Lawyers at LaszloLaw
Our Craft Beer Lawyers are ready to assist in registering your craft beer trademark. Our beverage and trademark 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 craft beer trademark needs.