TCB Magazine | tncraftbeermag.com
hopping into names? Trademark Issues In Beer |
ot so fast! If you think you’ve come up with the perfect unique name or pun for your beer, you’re probably not the first person to think of it. With over 4,500 breweries operating in the U.S., trademark infringement cases are on the rise in the beer industry. Coming up with clever names for your brewery and beers are crucial in creating a successful brand, but it can prove to be a difficult task with only so many words, names and puns that make sense with beer. Not to mention, the fact that you have to be concerned with wine, spirits, and in some instances, restaurants and bars. So, grab your favorite beer and let’s discuss how to avoid these issues before you’ve spent the time and money to create your brand, only to find out you have to start from square one and rebrand. Whether or not it takes you months to create a name, or it comes to you in one of those light bulb moments, it’s the perfect name you were looking for…that is, until you get a phone call or a letter from
an attorney. Most cease and desist letters and United States Patent and Trademark Office (USPTO) denials can be avoided by conducting a trademark search. What is a trademark? For craft breweries, trademarks often take the form of a word or design/symbol that identify your brand or product in the minds of consumers and helps them to distinguish you from other brewers. You can also gain trademark protection through other things, such as tap handles, that distinguish your brand from another brewery. In order to gain this protection, you must file an application with the USPTO to register your mark(s). There is a common misconception that securing a domain name, creating a social media account in the business name or putting the product name out to the public in some other way secures protection for your brand and product names. Even if you’ve taken all of these steps, you do not get trademark protection throughout the U.S. without registering the name with the USPTO. If you don’t register, you only obtain protection in the territory you’re actually selling in, and that comes with a whole other set of problems
By: Kelcy Morris Attorney at Law
if you ever have a dispute with another brewery. Banking on trademark protection in this manner is a risky business. With the industry growing so rapidly, the days of trademark disputes being settled over a pint are disappearing just as quickly. So, what can you do? Research, research, research! Way before you mill your first grains, you have to think about trademark. I know that money is scarce, especially in the beginning stages, but I promise, spending the time and money that you can on trademark upfront will often add up to much less than what you will spend after receiving that first cease and desist letter. Overlap in names is inevitable in this industry and a positive resolution is never guaranteed. Even if you aren’t selling your beer yet, do a quick search to see if the name you have in mind for your brewery or the names for your beers might be available. However, if you don’t find any already existing, that doesn’t mean your search ends there. We are constantly in communication with our brewery clients because we want to determine name availability as soon as they come up with something. If it’s available, then we almost immediately file an “intent to use” application with the USPTO before someone else comes up with the same name. We are really anti-lawyer lawyers and we often advise our clients not to get the lawyers involved too soon when an issue arises. The beer community is still communal and brewer-to-brewer is always our first recommended step. One of the most important aspects of a successful brewery is protecting your brand from concept, to the first pint you sell and beyond. Finally, get the advice of an experienced trademark attorney when deciding on your brewery and products names, trademark registration and any disputes because navigating your way through trademark can be just as difficult and take just as long as brewing a good Lambic if you don’t know what you’re doing.
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