The South African craft beer scene has exploded in recent times, with new and exciting breweries and beers being made available to consumers almost daily. The entire beer market appears to have been reinvigorated by the range of beers now available; in the past this kind of choice was available only to those interested in wine. As these brewery projects are often the product of passion and love for the craft of brewing and beer, the result is creative beers, bottling and branding. Unfortunately, however, after all of this passion and creativity finds its way into the physical product, the brewer often fails to take one of the most important steps in protecting its new, tasty and uniquely identifiable brew. It fails to protect its look, feel and overall brand identity, to obtain the only statutory monopoly legally available to it and to trademark the new brand.
Setting up a micro-brewery is not cheap; the equipment is expensive and often needs to be imported. The finest raw materials are required to produce maximum flavour and distribution across South Africa's vast geographical area is a monumental task.
The odds are against the craft brewer from day one as it tries to compete with not only the largest commercial breweries, but also one of the fastest-growing micro-brewery scenes globally. As start-up costs are high, the brewer needs to get consumers drinking its beer as soon as it hits the shelves to survive. So why would a brewer spend even more of its stretched budget on trademark protection? The brewer may think it cannot easily afford this, believing that trademarking brands is the business of multinational corporations, not micro-breweries. However, the real question is how the brewer can afford not to do so.
In a marketplace that is so competitive and creative, the craft brewer cannot afford to leave its unique name, label and brand go unprotected. It should thus trademark everything unique to its brand. The reality is that it is not that expensive to obtain a trademark registration. What is expensive, however, is trying to prevent competitors from passing off or stealing a brand without statutory trademark rights to enforce against them. It is always cheaper to enforce registered rights (ie, a trademark registration) than to fight an infringement battle with the far blunter instrument of the common law.
The clear message to the craft brewer is to protect its intellectual property, and so make it unavailable for others to pillage or dilute. Brewers have taken the plunge and decided to create a crafted product, characterised by uniqueness and creativity; now they should protect it. In such a competitive market, the law allows a company only one form of exclusive perpetual monopoly, and that is in relation to its branding or trademark. Brewers should take the law up on its exclusive offer to protect their hard-earned space in the market. If some unscrupulous competitor tries to infringe on the brewer's branding and market space, it will be equipped with the most efficient legal tool to economically and efficiently protect its brand.
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