from the gassy-brew-ha-ha dept
Here we go again. Beer-makers and trademark seem to be becoming something of an item these days. Previously, we've noted trademarks and battles over last names, common sports phrases, and (sigh) whether a six looks too much like a nine. Seriously. These applications and battles tend to revolve around some common term or name being used in association with a beer brand. Where trademark was chiefly developed as a resource for consumers to keep from being duped, it has evolved into a language-grab for companies looking to knee-cap the competition.
Such is the latest case, in which Left Hand Brewing out of Colorado wants to trademark the term "nitro" for their beer brands. Unfortunately, this presents a problem.
Colorado's Left Hand Brewing is attempting to trademark the term "nitro"—as in, nitrogen. The Longmont company is thus far the only US brewer to bottle with nitrogen as opposed to carbon dioxide, something it says it achieved at a steep cost: years of effort, and hundreds of thousands of dollars. "We have a bottle that is pretty unique," president Eric Wallace tells the Denver Post. But here's what's not unique: Plenty of breweries pour nitro beer on draft, and others have announced or implied plans for nitro beer in bottles or cans. If the trademark is granted, Left Hand could send cease-and-desist letters to those breweries, a lawyer explains.I'm not sure how accurate that last bit is. Instead, C&D letters would go out to other breweries using the label of nitro to denote a nitrogen infused beer, not breweries that simply partake in the process. Still, we see the problem of this evolution in trademark usage. What is likely to become an industry standard process, and one that is already done in other parts of the industry, is going to be locked up in terms of branding. Denoting a nitrogen-infused bottle isn't terribly different from denoting a beer as 'lite/light', yet other breweries would be deprived the ability to do inform their customers of what they're drinking if this mark goes through. That wasn't the purpose of the law at the outset.
Other publications, and companies, appear to agree.
The Week sees nitro as a "descriptor"—"imagine if, say, Budweiser tried to trademark 'refreshing,'" it quips. But Wallace says the trademark seeks to protect the name of its "Nitro Series" of beers, "not the style—not nitrogenated beers." But a rep for Anheuser-Busch—which has until June to decide if it will oppose the application—notes, "As a brewer, we have produced our own nitrogenated beers and, like many other brewers, large and small, we need to maintain the ability to identify them to consumers."We'll have to see if the trademark is granted, but it sure shouldn't be if the intent of trademark law is followed.