As of June 2014, the American brewing industry hit a big milestone with more than 3,000 operating US breweries (1). This recent expansion not only signifies an increase in locally brewed delicacies, but it also means that brewers will find it increasingly difficult to differentiate their brew from that of their fellow brewmasters. In order to stand out in this sea of bottles, brewers often use clever names for their brews. However, be it a “hopcentric” pun or a “barley-legal” nickname, it is increasingly difficult to find a clever name for a new brew while avoiding a legal trademark battle (2).

Hartford’s own City Steam Brewery recently settled a trademark battle over the branding on its bottled beer (3). Anchor Brewing Co., based in California, filed suit against City Steam, in a case that ultimately led to a seemingly minute settlement agreement. City Steam will now market its beer under the one-word “CitySteam” name instead of the original “City Steam.” Another local, New England Brewing Company recently received a petition from an attorney in India over their highly popular brew, “Gandhi Bot”, claiming that this vegetarian, aromatic India Pale Ale, is “nothing but an insult to the Indian constitution!” (4).

Lagunitas Brewing Co. filed a lawsuit against fellow Californian Sierra Nevada Brewing over Sierra Nevada’s newest beer, an IPA called “Hop Hunter.” Lagunitas claimed Sierra Nevada copied the distinctive Lagunitas IPA trademark. At issue was the look and spacing of the label’s lettering (5). The words describing the type of beer, IPA in this case, cannot be registered as a trademark as it is a descriptive mark, so Lagunitas claimed they copied the distinctive kerning (that is, the spacing) of the I, P and A on the Lagunita’s label. Within 24 hours a “brew-haha” erupted, prodded by a barrage of furious drinkers who induced a social media storm of outrage. Lagunitas immediately dropped the suit to quell the uproar.

At the other end of the spectrum, the brewers at Colorado’s Avery and California’s Russian River discovered a few years ago, that they each had a beer named Salvation. Instead of legally battling out their rights, they cleverly combined their beers in a blend which they named “Collaboration Not Litigation” (6).

It seems that beer imbibers, who have long prided themselves on their carefree and laidback attitudes, are asking the question, is it necessary to be such sticklers about it all? Do breweries have to protect their trademarks and characteristic beer bottle trade dress so aggressively? This laid-back attitude is at odds with the necessity to protect hard-won and legitimate trademark and trade dress assets.

In the US, trademarks originated as devices or labels to identify the craftspeople responsible for producing goods for sale in the marketplace. Not surprisingly, the legal protection of a trademark is obtained through the acquisition and use of a federal registration. The user that first registers a bona fide mark is entitled to nationwide rights for use of the mark in trade.

The issue at hand arises from the “policing and enforcement” provision required to maintain trademark rights. Failure to police and enforce a trademark can cause the mark to lose significance and legal protection. Trademark owners have a duty to protect their marks and if they don’t challenge infringers then you lose the ability to challenge future conflicts. This means that Sierra Nevada, by giving in to angry imbibers, has weakened their mark and their right to protect the ownership of it.

Breweries such as New England Brewing Company and Sierra Nevada have a decision to make. How much is the legal protection of their mark worth? Do their trademarks sufficiently distinguish their brew? Are they willing to risk a laissez faire attitude, in order to please social-media, despite the possibility of similar marks leading to confusion, loss of customer loyalty and the following revenue? Or are they willing to police it, despite the potential for angry fans, to maintain distinction, consumers and revenue? In this world of ever increasing microbrews, those are the questions a brewer must ask. For sustainable brew distinction, breweries may need to go against the laisse faire culture of their brewers in order to differentiate and protect their trademarks.