Another Craft Beer Brand Gets Bullied To Death Over Shaky Trademark Claims
from the mark-and-stormy dept
The warning bells for the craft beer industry have been sounding for some time now, but the trademark disputes keep on coming. Even as trademark registrations in craft beer grow exponentially and intellectual property attorneys themselves are predicting an explosion in disputes on the horizon, the legal cases and threat letters have begun to grow. What once was an industry known for cooperative and congenial attitudes on trademark issues has devolved into corporate protectionism. But inter-industry disputes aren’t the only concern, as the explosion in the craft beer industry has also invited trademark disputes from those outside of the industry.
Trademark protectionists can now put another pelt on the wall, that of the Dark and Stormy Night beer made by Picaroons Traditional Ales.
The Fredericton-based craft brewery announced through social media it’s putting the popular organic dark wheat beer “to rest” after losing a lengthy legal battle with another company over trademark infringement. The Facebook post does not name the other company, but Picaroons Traditional Ales owner Sean Dunbar confirmed it’s liquor giant Goslings.
Picaroons received a cease and desist order from Goslings, saying the beer infringed on its Dark ‘n Stormy cocktail, made with Gosling’s Black Seal Rum and Gosling’s Stormy Ginger Beer.
“We tried, you know, saying ‘Please,'” Dunbar said. “We tried arguing that the two products really didn’t have anything to do with each other.”
Those arguments didn’t work. And I would think such arguments shouldn’t even be necessary for a couple of reasons. First, and, damn it, I’m going to keep shouting about this until the USPTO finally listens: not all alcoholic drinks compete in the same marketplace and trademarks should afford more subtelty to those market distinctions. Wine, beer, liquor, cocktails are all distinct items for a shopper. With sufficient differences in names and branding, nobody is going to mistake a wine company for a beer company, or a beer company for a liquor company. “Dark ‘n Stormy” and “Dark and Stormy Night” aren’t completely distinct, but they’re distinct enough when placed on different types of drinks to be discernable to the common consumer.
And about that “Dark and Stormy Night” brand name itself. Dunbar claims he got the term for his beer from a Peanuts comic strip, which is perplexing to me because “It was a dark and stormy night” is a cliche opening for a work of fiction. That’s what it’s known for and, in some circles, it’s used essentially as a joke that references a lack of creativity. A dark ‘n stormy cocktail, however, references the stormy weather in the Carribean where the term was coined. I personally never would have made the connection from the beer’s name to that of the cocktail, and I’m not sure many others would have either.
But, rather than fighting this out in court, Picaroons decided to cave and kill the brand.
Picaroons said in its Facebook post that the brew at the centre of the dispute had been in production for 11 years.
“We certainly did not go out without a fight, though after months and months we’ve officially lost the battle and are now retiring our lightest dark beer.”
Dunbar said the company worked with a local trademark lawyer and “would have loved to defend it to the hilt,” but decided taking it all the way to court wasn’t worth the expense.
“Good bye old friend,” the Facebook post said. “RIP.”
And so another craft beer brand commits suicide rather than fight for its life in court, proving once again that trademark bullying works.