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.

Great.

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.

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Filed Under: beer, craft beer, trademarks


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  • icon
    Thad (profile), 14 Sep 2020 @ 8:48pm

    If their goal is to drive a man to drink, then mission accomplished.

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

  • icon
    Chris Meadows (profile), 14 Sep 2020 @ 11:57pm

    So much for...

    "free as in beer"

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

  • identicon
    Anonymous Coward, 15 Sep 2020 @ 2:32am

    What I want to know is, which industries are currently LEAST encumbered with intellectual monopoly bullshit?

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

  • identicon
    Anonymous Coward, 15 Sep 2020 @ 4:42am

    What I want to know is, which industries are currently LEAST encumbered with intellectual monopoly bullshit?

    You--and who-knows-how-many greedy and under-remunerated-in-their-own-minds lawyers who are looking for growth markets.

    Having found an industry unencumbered by lawyers but overencumbered by MBAs, they'll go to the aforesaid MBAs with a pitch something like: "Gain a competitive advantage by hobbling your competitors in court!" (which, translated into honest English, would be: "Give us money, and we'll make sure your competitors have to give their lawyers even more money!")

    It spreads like a plague at lawyers' conventions, where "lawsuit industry leaders" (that is, folks who are respected among other greedy folk for having large incomes) give seminars (with CNE credits!) on how to move in on underencumbered industries.

    So long as the legal profession and corporate hierarchies are infested by unethical people, it spreads. "Herd immunity" comes only through respect for ethical, public-spirited activity.

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

  • identicon
    David, 15 Sep 2020 @ 7:08am

    Just say it out loud:

    An ample amount of beer means IP.

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

  • icon
    Ehud Gavron (profile), 15 Sep 2020 @ 7:28am

    Open source movement

    There is definitely a problem, and the solution is to encourage those who don't cause it, and punish those who do.

    • Form a Craft Beer Open Source group
    • Allow unpaid memberships to show support of the masses
    • Allow paid and corporate memberships to fund the group
    • Craft Beer vendors (sorry, Coors) can participate by
      • Submitting their name and label to be included in group marketing
      • Agreeing not to sue other group members for trademark violations
      • Agreeing to timely publish their spec so home brewers (and others) can duplicate their craft
    • Wait five years

    E

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

  • icon
    SteveG (profile), 15 Sep 2020 @ 9:36am

    Well it's kind of correct

    At least in the UK, beer actually is the most trademark thing ever (or at least the longest running). The very first registered trademark was granted to Bass in 1876. According to the myth, their lawyer slept on the steps of the trademark office.

    Apparently, beer counterfeiting was a thing back then. Stunningly, that is a serious statement, not sarcasm.

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

    • icon
      Ehud Gavron (profile), 15 Sep 2020 @ 9:55am

      Re: Well it's kind of correct

      The myth takes on new dimensions :)
      According to this it was a company employee... which COULD have been a lawyer, but undefined... and he "stood in line" not slept.

      It was a Bass employee who rang in the New Year by waiting in line outside the registrar’s office to ensure that the company became the first to file a trademark when the office opened on the morning of January 1, 1876.

      E

      https://www.logoworks.com/blog/bass-pale-ale-brand-and-logo/

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

  • identicon
    Anonymous Coward, 15 Sep 2020 @ 10:20am

    The professionals agree!

    It's true, all the alcoholics I've interviewed are 100% certain that alcohol will continue to be produced without any IP... since most alcoholics care only about getting wasted, there's no need for Intellectual Property to promote the growth of the industry...
    It's the lack of livers that's standing in the way! not IP.

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

  • identicon
    Anonymous Coward, 15 Sep 2020 @ 10:27am

    confusion

    trademarks are chiefly meant to avoid customer confusion

    Note, that's "Customer" confusion and not "Customs" confusion... ... because apparently Customs uses a whole different set of rules for Trademark; as made apparent by the recent confiscation of google pixel buds for Trademark infringement on Apple air pods.

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


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