The number of craft beer breweries in the U.S. has been on the rise in recent years. In 2003, there were 1,485 craft beer breweries in the U.S. and in 2013, the number almost doubled to 2,822. The increase has been exponential; the number of craft breweries in 2013 demonstrates a 15.3% increase from 2012. More craft breweries means more competition among brewers, but it also means more beer brands (over 93,000 to date) and more disputes over the trademarks of those brands.
A trademark can be any word, name, symbol, device, color, or any combination thereof that serves as an identifier of source for particular goods in commerce. To be registered with the United States Patent and Trademark Office (“USPTO”), a trademark must be distinctive and in use in commerce.
Trademarks are can be arbitrary/fanciful, suggestive, descriptive, or generic. Arbitrary marks have no relationship with the associated goods, while fanciful marks are fabricated marks with no common meaning. Suggestive marks suggest a quality or characteristic of the associated goods, but do not describe them. Both arbitrary/fanciful and suggestive marks are inherently distinctive and are registrable on the USPTO's principal trademark register. Descriptive marks describe the associated goods and are not inherently distinctive. To be registered, descriptive marks must acquire secondary meaning (i.e., the mark must be proven to be associated with a particular source despite its descriptive nature). Generic marks refer to the common name of the associated good (such as “beer” for an alcoholic beverage made from fermented grains) and cannot be registered. Trademark applications require that a mark is actually used in commerce or there is anintent to use the trademark in commerce. In the latter case, use in commerce eventually needs to be shown.
Federal registration provides trademark owners with several benefits, including the exclusive right to use the mark on or in connection with the classes of goods described in the registration, a presumption of ownership of the mark, the ability to initiate legal action involving the mark in federal court, and public notice of ownership of the mark.
Trademarks and the brands they protect are particularly important for craft beer brewers. A beer name or brand is how consumers come to identify the product with which it is associated and how craft brewers develop loyalty among their customers. Because craft brewers focus on producing unique and high-quality beers, maintaining that loyalty through proper source identification is invaluable.
In recent years, as the market has become more saturated, many craft brewers have begun to enforce and defend their brands and trademarks. Magic Hat filed suit against West Sixth Brewing Co., alleging its trademark was confusingly similar to its owns designs. The parties later entered into a settlement agreement whereby West Sixth Brewing Co. altered the disputed logo. Renegade Brewing changed the name of its flagship brew from Ryeteous Rye IPA to Redacted Rye India Pale Ale after Sixpoint Brewery, maker of Righteous Ale, sent Renegade Brewing a cease-and-desist letter. Brewery Vivant demanded that Tired Hands Brewing change the name of its FarmHands brew to protect its trademarked Farm Hand ale. Troegs Brewing Co., maker of a popular holiday brew called Mad Elf Ale, sought to cancel Bethlehem Brew Works’ Rude Elf’s Reserve trademark. Just last month, Coppertail Brewing Company filed suit against Coppertop Brewing Company for trademark infringement. These disputes are just a handful of those that have surfaced and more are sure to come as the craft beer market continues to expand.
To avoid trademark disputes, brewery owners should take a few proactive steps to protect their brands. During the process of choosing an appropriate trademark, brewers should research whether a given name is in use. These initial searches should include various beer directory websites (such as Beer Advocate, Rate Beer, and Beer Pal) and most obviously, Google. If, after these initial searches, the given name seems to be available or it is unclear whether it is available, a trademark attorney should be engaged to perform a more thorough search, including a search of trademarks already registered with the USPTO and brands certified through the Alcohol and Tobacco Tax and Trade Bureau. If a thorough search confirms that the mark is available, it should be registered with the USPTO. Otherwise, it is best to go back to the drawing board even when a name seems particularly attractive. It is better to choose a less desired name than to make another brewer ‘hop’ping mad and add to the list of breweries ending up in court over trademarks. Once a mark is picked and registered,brewery owners should closely monitor use of their trademarks and enforce and defend them when necessary.