Craft Brewing Trade Mag Argues Beer Is The Most IP Product Ever, Ignores History Of The Industry
from the calling-all-lawyers dept
And now, we shall talk about one of life’s great pleasures: beer. This nectar of the gods has been something of a focus of mine, particularly given the explosion of the craft brewing industry and how that explosion has created an ever-increasing trademark apocalypse over the past decade. It is important context for the purposes of this post that you understand that the craft brewing industry, before it exploded but was steadily growing, had for years operated under a congenial and fraternal practice when it came to all things intellectual property. Everything from relaxed attitudes on trademarks, to an artistic bent when it came to beer labels, up to and including the regular willingness of industry rivals to regularly collaborate on specific concoctions: this was the basic theme of the industry up until the past decade or so. It was, frankly, one of the things that made craft beer so popular and fun.
With big business, however, came corporatized mentalities. Suddenly, once small craft breweries doubled in size or more. Legal teams were hired and there was a rush to trademark all kinds of creative names. The label art, once the fun hallmark of the industry, became a wing of the marketing department. This is how, now in 2020, you get trade publications like Craft Brewing Business arguing that beer is one of the most all-encompassing products when it comes to intellectual property.
To be fair, given the current climate, you can see some of the logic in the following:
Beer aficionados worldwide can easily describe the nuances of pilsners, IPAs, milkstouts, and lagers. More hazy is the fact that beer is a product that touches upon nearly every type of intellectual property. Indeed, the names of breweries and beers are subject to trademark; label art and packaging are works of authorship covered by copyright law; and hops—that critical component of a beer’s aroma and flavor—can be patented.
It’s a fair point, certainly. Though, left entirely unsaid in the entire post is whether any of this is a good thing. Instead, the post goes on to explore in some detail just how all things IP can be applied to brewers’ products. Even when it gets absurd, the post hand-waives away any concerns. We’ll start with the patenting of hop varieties.
The short answer to this seemingly straightforward query is the plant patent. By statute in the United States, whoever:
” invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, . . . may obtain a patent therefor. . . .”
Hops can be among these new plant varietals, and as part of the bargain for inventing a novel strain, brewing innovators release their work into the public domain after 20 years. But until that two-decade window closes, the creator and owner of a plant patent gets to cash in exclusively on the agricultural brainchild.
A couple of things here. First, the idea that mild differences in varieties of particular plants should get patents doesn’t strike me as a great thing. And, given the longstanding practice of patent-extending by making minor tweaks to the biology of the plants and then re-patenting them, I can’t imagine why the craft beer industry, once rife with creative brews, would want any of this protectionism.
Second, as the post mentions, though barely, patent holders for even some of the most well-known hop varieties regularly fail to hold up their end of the patent deal with the public.
Of note, if a patent owner does not adequately teach the world (translation: the public domain) about the plant at issue and how to make it upon the patent’s expiration, the patent’s owner—by effectively keeping the invention secret and taking advantage of the 20-year monopoly bestowed by patent law—has not kept up its side of the bargain. This unfortunately seems to be the case with respect to the Citra hops patent, which does not offer much in the way of substantive direction for replication of this varietal, meaning it may not be enabled and, therefore, subject to challenge.
When it comes to trademarks, the post does a decent job of articulating how trademarks are chiefly meant to avoid customer confusion. While true, the industry survived for decades without putting any real emphasis on trademarks. That seems worth mentioning. Instead, the post goes on to use an absolutely awful example of trademarks being used to protect an industry brand.
To be clear, marketplace confusion is what trademarks are meant to prevent. That being said, if a shopper strolls down a grocery aisle, peruses the beer selection, and confuses a bottle of Stone IPA with and a Keystone Light by virtue of packaging—and advertisement—encouraging drinkers to “grab a Stone,” Molson Coors Beverage Company (owner of the Keystone brand) may be infringing upon Stone IPA’s trademark. If this scenario sounds familiar, that is because this very dispute between Stone Brewing and Molson Coors is scheduled for an October trial in federal court.
Here again we have errors of omission. While Stone is indeed in a fight with Molson Coors as described above, the article fails to point out that Stone Brewing, in service of getting a huge judgement in this court case, has turned on a ton of other craft breweries with which they used to coexist peacefully, and has started bullying them with its trademarks as well. And, what’s more, Stone went on to piss and moan when the wider public thought it was behaving like bullying dickheads in all of this. This seems like exactly the sort of thing craft breweries could learn from, yet it’s all totally absent from the post.
And, while the post goes on to ignore the question of copyright in label art, the most glaring absence of information has to do with the history of the industry. Again, this is an industry that exploded before everyone decided to have corporatized legal firms challenging every trademark application that’s even close to infringement. If there is a lesson in the last decade for the craft beer industry, it’s that it should have striven really hard to retain its roots when it became big business.
And the real shame of it is that new brewers reading trade magazines like Craft Brewing Business may not know, and now won’t learn, of those far better times.