Trademarks, Coyotes, and Craft Brews; are names over the legal limit?
The Craft Beer community has a problem; we are running out of names. Every hilltop, critter and local legend has been, or is about to be used to name a brew.
Why is that a problem?
Craft beer might be local but trademarks are federal. So you after releasing your Coyote Amber, investing in cans and inking a distribution deal you might be forced to swallow a bitter brew when a nasty cease-and-desist letter arrives saying “you’re using my mark” and threatening an injunction.
Welcome to the big time where you get to think about your intellectual property strategy along with your humulus. In the brewery business names are important and you may have lots of them. In addition to the name of your brewery, each of your beer names (and labels) are opportunities for infringement.
So what’s a brewer to do?
First, assess. Make a list of all the names you are currently using and search the US trademark database for potential conflicts. Then do the same thing using regular internet search. For each name record the potential conflict(s). For example — the USPTO returned 541 documents with the word “Coyote.” BeerAdvocate.com returned 14. That should be a signal that some further investigation is warranted before you add yourself to that list. To make good use of your time, rank order the product names by total sales especially those sold at retail or off-premise.
Next, plan. Estimate how many new brews you will release in this year and brainstorm a bunch of names. Put them in order of the ones you like best and repeat Step 1. Finally, understand the opportunities, risks, and options around conflicts. If you are planning a new name there is no excuse for not at least looking for potential conflicts before they arise. Ignorance is not bliss or a defense to infringement. In fact, a registered trademark enjoys the legal fiction of “constructive notice,” which means that a court will treat an infringer (person or entity) as if they knew of the other mark, even if they have no actual knowledge of it. If you are lucky enough to be on the right side of this equation, meaning another party is infringing on your mark, consider that a lawsuit might not be the first, best solution. Generally litigation is best for the lawyers. Better to plan ahead and focus on serving good beer at your bar rather than fighting with someone who studied to pass one.
Photo by Adam Wilson on Unsplash