Trademark

by Timothy Geigner


Filed Under:
brewery, confusion, trademark



Brewery Changes Name For Second Time In Two Years Because Trademark

from the 3rd-time's-a-charm? dept

It's a mantra I've been repeating for some time now, but the alcohol and brewing industry has a trademark problem on its hands. We've seen instance after instance of the explosion in the craft brewing industry being hampered and harassed over trademark concerns, both from within the industry and from the outside. Most of these disputes lay bare the fact that trademark law has moved well beyond its initial function of preventing consumer confusion into a new era of corporate bullying and protectionism. But at least in most of these instances, the victim of all this is a victim once. Larry Cary, on the other hand, must be starting to feel like a punching bag, having had to now twice change the name of his alcohol-making business over trademark concerns.

Cary opened North Coast Distilling on Duane Street in 2014. In October, he was sued by California-based North Coast Brewing, and spent about $10,000 changing his name to Pilot House Spirits. Then Cary was sued in January by House Spirits Distilling, which claimed his new name violates "established valuable trademark rights and goodwill throughout the United States." The distillery, known for Aviation American Gin, has registered "House Spirits" and "House Spirits Distillery" with the U.S. Patent and Trademark Office.

His business will become Pilot House Distilling as part of a settlement with House Spirits Distilling.
To be fair, in the current climate, both of these trademark disputes ring as fairly valid from the complainant's perspective. The names in both instances were similar enough that I can understand the concern. That the solution the second go around was a name nearly indistinguishable from the name that had so offended House Spirits Distilling at once raises the question as to just how injurious the original was in the first place, but can also be seen as House Spirits Distilling behaving in an accommodating way. In other words, I can't really say there are any bad guys in this story.

The problem instead is one of bloat. For the alcohol industry, there is at once an era of increased trademark protectionism, an era in which the bar for originality and uniqueness to get the USPTO to approve a trademark has clattered to the floor, and an era of explosion in participation in the industry. That's a recipe for strife and confusion over who is allowed to enter the market using what language and under what circumstances. Some might fairly point out that these trademark protections have contributed to the explosive market to begin with. I would argue vehemently with them, but even for those on that side of the argument there must certainly be an acknowledgement that we're quickly approaching the level of diminishing returns. If the industry wants to continue to grow, it should be paying attention to the hurdles its placing in front of startup participants.
Cary said he'll have to spend another $10,000 to $15,000 changing the name on all his products and properties to Pilot House Distillery, adding that every time he names his business or products, he checks trademarks.

"What I've learned is even if you do everything right and you trademark it… if someone has bigger pockets than you, they can do whatever they want," he said.
What happens when we're faced with more stories of business folk playing brand-name musical chairs, all because there is too little language left available?


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  • identicon
    ovisis, 19 May 2016 @ 12:24am

    perhaps...

    Perhaps this history of infringing on everyone can be used in the product identity??
    "Trademark Infringement Distillery"

    reply to this | link to this | view in chronology ]

  • identicon
    David, 19 May 2016 @ 12:32am

    The ultimate cash cow

    I am going to trademark a blank label. Any label with blank areas is then going to be infringing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 May 2016 @ 1:09am

    How the hell is 'House Spirits' even trademarkable? Oh look two generic common use words put together to make a commonly used phrase... Totally worthy of a trademark.

    reply to this | link to this | view in chronology ]

  • icon
    Violynne (profile), 19 May 2016 @ 5:31am

    I'm sorry, but how did "I don't see any bad guys here" derive from the moron-in-a-hurry test as to not differentiate "Pilot House" from "House Spirits"?

    I'd definitely call House Spirits the bad guys here, especially that it's reasonable to see Cary is now paying for the license to use the name (which is probably more expensive in the long run than it is to pay $10k immediately).

    I can definitely see a potential for confusion for the first, not the second.

    Though, I'm going to be frank here: Cary shouldn't be in business. If he couldn't even take a day to cursory check the open, free to use trademark website to ensure he wasn't even close to a lawsuit, then he certainly deserved to pay for that lesson he clearly didn't learn from.

    reply to this | link to this | view in chronology ]

    • identicon
      kallethen, 19 May 2016 @ 6:08am

      Re:

      I'm sorry, but how did "I don't see any bad guys here" derive from the moron-in-a-hurry test as to not differentiate "Pilot House" from "House Spirits"?

      "Pilot House" is what the third name will be. It was "House Spirits" that was the contention on the second go around. Per the article, "North Coast" was the issue on the first time.

      reply to this | link to this | view in chronology ]

    • icon
      Berenerd (profile), 19 May 2016 @ 6:38am

      Re:

      "adding that every time he names his business or products, he checks trademarks. "

      Did you miss that part? He has done due diligence and some how it failed.

      reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 19 May 2016 @ 7:31am

    Google.

    Been there and done that.

    "Checking trademarks" is a waste of time.

    What he needs to do (and obviously didn't think of) is to check Google, which would have told him about the similar names immediately.

    reply to this | link to this | view in chronology ]

  • icon
    Richard (profile), 19 May 2016 @ 7:47am

    Wheras

    Whereas the big breweries in the US simply steal someone else's name and somehow seem to get awa with it - as in Budweiser.

    Here in the UK BOTH Budweiser brands (the original Czech and the ripped off American) seem to sit on the shelves next to each other with very siilar labels - how's that for consumer confusion!

    reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 19 May 2016 @ 10:36am

    Thankfully, he has changed his company name to Bud The Wiser Brewery, so there is absolute no risk of any more problems.

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 19 May 2016 @ 4:17pm

    Of all the expenses

    I've started a few businesses in my time, and each time I've done a trademark search on the name I wanted to use -- to minimize the chances of exactly this sort of thing happening.

    It always irks me. A proper trademark search is not a cheap thing to do, and it feels like wasted money. But changing a company name is very costly, so if the search lets me avoid accidentally treading on someone's trademark then I have saved a lot of money.

    It sounds like such a search would have avoided this brewery's problem twice, and so I assume that they didn't do it.

    If not, then while I'm sympathetic to their position, the fact is that they rolled the dice and lady luck was not smiling.

    reply to this | link to this | view in chronology ]

    • identicon
      GrumblerCO, 26 May 2016 @ 5:05pm

      Re: Of all the expenses

      I'm sure the lawyer he hired to do trademark clearance has a malpractice policy that is answerable for both of these mistakes.... Oh wait, Google and.or the USPTO site aren't lawyers?

      reply to this | link to this | view in chronology ]

  • identicon
    Cvnk, 20 May 2016 @ 6:38pm

    Trademark free name suggestion

    "Piecoast Houseth Spirstillery". They can have that one for free if they need it.

    reply to this | link to this | view in chronology ]

  • identicon
    Andrei Mincov, 14 Jun 2016 @ 8:04pm

    Some people never learn. OK. The first time it was an honest mistake. You thought that trademark infringement accusations is something that happens to everyone but you. I get it. So what do you do the second time around? You STILL find a name that's too close to a previously registered trademark?

    reply to this | link to this | view in chronology ]


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