ILNews

Growth of craft breweries means more IP fights

Back to TopCommentsE-mailPrintBookmark and Share
focus-brewing-dsc02321-15col.jpg Names and logos that go on the beer bottle are just as important to Triton Brewing Co. as what brewers like Mike Hess craft to go inside. Triton had some trouble initially securing its name. (Photo submitted)

After talking about beer, learning about beer and sampling beer last week at the Brewers Association Craft Brewers Conference, David Waldman returned home to Indianapolis knowing he had some letters to write.

The director of operations for Triton Brewing Co. will be sending messages to the other brewers he saw at the convention whose names were too similar or outright duplicating Triton’s trademarks. His tone will be polite and nice, but he will clearly explain Triton owns the brand and the recipients are infringing.

As the number of craft breweries in the United States has skyrocketed 5,234, a 16.2 percent increase from the year before, there has been a rise in trademark disputes. Beermakers are increasingly suing in federal courts to protect their brand names and logos.

The uptick in brawls is linked to growing sophistication in the industry. Artisans who just want to brew and give their neighbors something delicious to enjoy are being replaced by business professionals and investors more focused on expansions and profits.

As new breweries mushroom and established beermakers introduce new concoctions, a distinctive brand is vital to standing out in the market.

Waldman and his business partners selected their brewery name a couple of years before they opened their business but still had trouble securing the trademark. They wanted to name their brewery Triton, but a winery in Spain which had a small distribution to Boston was already using the moniker. An extensive series of hearings and filings followed until finally the wine makers relented.

Focus beer Sun King Sun King barrel manager Andrew Hood works on crafting beer. The brewery has been involved in trademark disputes involving the names of its beer. The companies amicably worked out the issues. (Submitted photo/Chris Johnson)

The Indianapolis brewers wanted the Triton name because it helped tell the story of their beer. Waldman and his partners carved out their niche in the market by perfecting the primary ingredient beer — water. Prior to brewing, the water is put through a charcoal filter and reverse osmosis process which, Waldman said, creates a beer that has a velvety feel in the mouth.

Consequently, Triton — a god of water in Greek and Roman mythology — links to the brewery’s method for making beer.

“It was the perfect name waiting to be plucked out of the air,” Waldman said.

Crying in their beers

At the California law firm, The Craft Beer Attorney, lawyers regularly get calls from brewers wanting to know if the name they picked has been trademarked. Usually the conversations end with the anguished cry that all the good names have been taken.

The saturation of brands in the craft beer industry is not surprising. Stacy Hostetter of Craft Beer Attorney explained that not only do the individual breweries have names, the beers also have names.

The restraint becomes even tighter given the limited vocabulary of the industry. Producers want names that distinguish their beverages but yet are closely associated with beer in general so consumers can easily identify what it is. Since beers are primarily made with grain, hops, yeast and water, picking an associated moniker can quickly stir trouble.

Hostetter Hostetter

Changing the name can be emotional because brewers often have attachments to their brands. They might have conjured up the name when they were still homebrewing, and when they realize their dream of opening a brewery, not being able to use their special name can be heartbreaking.

“Telling them to come up with a new name is like telling them to rename their child,” Hostetter said. “The idea of changing is very painful.”

In Elkhart, Chip Lewis and his wife Summer have a very strong connection to their brewpub’s name but they have not trademarked it since it is not only distinctive but also practically unpronounceable. The business began as a hobby with Chip Lewis getting a homebrewing kit for Christmas. Friends who were invited over to sample would all raise their mugs and utter the toast, Iechyd Da!

The term (pronounced ya-key-dah) is based on Chip Lewis’s Welsh heritage. Summer Lewis pointed out the added benefit is that the name is a conversation starter. Patrons come in with questions and the pub owners are able to make new friends, which can lead to repeat business.

In a town of roughly 51,300, the 75-seat tavern served 65,000 customers in 2016 alone. “It’s been a race to keep up since (we opened),” Summer Lewis said.

Having a beer together

When they do decide to open for business, brewers are generally more focused on buying the equipment, obtaining the financing and getting the permits. Their brand and logo are important but either they do not realize they could be infringing or they do not want to spend the money to hire an attorney to search for trademarks.

Breweries tend to cover a small or regional geographic area and do not ship their product all over the country. While having a limited footprint reduces the potential for infringement because consumers would be less likely to confuse similar brands in different parts of the country, social media is redrawing the map.

Websites like ratebeer.com and aps like Untappd provide forums for customers to comment on what they tasted. If brands are similar, consumers could mistakenly write a bad review of the wrong beer.

Meyer Meyer

However, before an infringement case reaches court, the culture of the craft beer industry dictates that brewers first make a phone call or write a nice letter. Charlie Meyer, partner at Woodard Emhardt Moriarty McNett & Henry LLP, noted small beermakers tend to be a collegial group who want to reach an amicable agreement.

“Generally, I find most companies are reasonable if both sides are willing to work together,” Meyer said.

Sun King Brewery has experienced two kinds of treatment in trademark disputes and now advocates for starting with a soft approach.

Shortly after Sun King opened, a brewery in Maryland sent a cease and desist letter, claiming its trademark was being violated by one of the Indiana company’s beer names. Sun King vice president and general counsel Steve Koers thought about fighting, but his business partners decided keeping the name on a draft beer was not worth the expense.

Another time, the president of different brewery called. Sun King had a beer name that was similar to the brewery but after a conversation, the president agreed to let the Hoosiers sell the batch it had already canned before changing the name.

“You don’t want to lawyer up right away,” said Koers, who is also a partner at Lewis and Wilkins LLP. “You try and be nice about it by calling people in the other business if there are issues and you see if you can work it out.”

A generic future?

Hutson Hutson

To Jeffersonville solo practitioner David Hutson, the rise of infringement lawsuits among craft brewers is a little disheartening. Litigation can divert investment from the beer and tarnish some of the excitement that comes with starting a business.

Hutson, who defended the brewpub Red Yeti in Jeffersonville in an infringement dispute with Denver’s Great Divide Brewing Co., conceded startups may try to save money by searching for protected marks themselves and by not registering their own name. But they are risking a lightning strike that could harm their entire business.

Going forward, Hostetter expects trademark litigation to increase. Brewers will turn to the courts to protect their brands for a while but eventually, they will find all the work that goes into applying for trademarks, fending off litigation and preventing infringement is too much trouble.

At that point, the industry will shift. Hostetter believes brewers will turn from giving their beers creative names to generic labels.

Herriman Herriman

One thing likely to remain constant in the craft beer world is inspiration. Homebrewers will probably still nurse dreams of opening pubs and selling growlers.

“I doubt (the infringement lawsuits) dampen anybody’s enthusiasm to get into the brewing industry,” said Bart Herriman, hospitality lawyer with Clark Quinn Moses Scott & Grahn LLP. “Brewers are craftsman and artisans. They want to get into it.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  2. MELISA EVA VALUE INVESTMENT Greetings to you from Melisa Eva Value Investment. We offer Business and Personal loans, it is quick and easy and hence can be availed without any hassle. We do not ask for any collateral or guarantors while approving these loans and hence these loans require minimum documentation. We offer great and competitive interest rates of 2% which do not weigh you down too much. These loans have a comfortable pay-back period. Apply today by contacting us on E-mail: melisaeva9@gmail.com WE DO NOT ASK FOR AN UPFRONT FEE. BEWARE OF SCAMMERS AND ONLINE FRAUD.

  3. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  4. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

  5. From the article's fourth paragraph: "Her work underscores the blurry lines in Russia between the government and businesses . . ." Obviously, the author of this piece doesn't pay much attention to the "blurry lines" between government and businesses that exist in the United States. And I'm not talking only about Trump's alleged conflicts of interest. When lobbyists for major industries (pharmaceutical, petroleum, insurance, etc) have greater access to this country's elected representatives than do everyday individuals (i.e., voters), then I would say that the lines between government and business in the United States are just as blurry, if not more so, than in Russia.

ADVERTISEMENT