from the lawyers-are-coming dept
With all the trademark actions we've seen taken these past few years that have revolved around the craft beer and distilling industries, it seems like some of the other folks in the mass media are finally picking up on what I've been saying for at least three years: the trademark apocalypse is coming for the liquor industries. It's sort of a strange study in how an industry can evolve, starting as something artisan built on friendly competition and morphing into exactly the kind of legal-heavy, protectionist profit-beast that seems like the very antithesis of the craft brewing concept. And it should also be instructive as to how trademark law, something of the darling of intellectual properties in its intent if not application, can quickly become a major speed bump for what is an otherwise quickly growing market.
All of this appears to have caught the eye of Sara Randazzo, blogging at the Wall Street Journal, who notes that the creatively-named craft beers that have been spewing out of microbreweries across the country may be running out of those creative names.
As today’s Wall Street Journal explores, legal disputes in the beer world are becoming the norm as new craft breweries spring up at a rate of roughly two per day. Trademark lawyers have gotten so used to the beer disputes that they are now turning on each other. Some dozen lawyers are contesting San Diego lawyer Candace Moon’s attempt to trademark the term “Craft Beer Attorney,” which she says she rightfully deserves.
Within the rest of the post, Randazzo highlights one dispute between craft brewers in order to give a sense of just how small these belligerent parties are. It's a dispute that escaped even my radar, despite what has become something of my "beat" around Techdirt. Three professionals with day jobs decided to make a go at brewing craft beer and named their company Black Ops Brewing, the pun resting upon "hops" used in their beer, while also serving as a nod to their family members that served in the military. Three guys making beer, but the trademark dispute came almost immediately.
Within months of launching, Mr. Broussard and his partners heard from Brooklyn Brewery clear across the country. The message: They needed to stop using the name Black Ops Brewing, because the New York brewery already had a beer named Brooklyn Black Ops.
Three months of litigation and one preliminary injunction later, and the Fresno business is now called Tactical Ops Brewing Inc. “They probably spent four to five times what our company is worth in legal fees,” fellow co-founder Justin Campagne said.
Now, we could spend some time analyzing whether or not there would be any real customer confusion to consider between the two names, whether the two companies were operating in the same market, or whether Brooklyn Black Ops had to initiate all of this in order to retain its trademark. Those would be worthy discussions to have, but there is a more fundemental question: is trademark law in this instance doing more to help or hurt the craft brewery industry?
It's not a simple question to answer in the present, though I do think the trend of increased trademark actions in the industry should tell us something important. As the industry becomes more crowded, trademarks are serving as a method to push out new players, or at least making entry into the market more difficult. After all, there are only so many hop-puns specifically, and creative ways to name a specific brew more generally. With new craft breweries springing up every day and those breweries each pushing out multiple different brews, at some point we'll get to a place where there are so many breweries producing so many brews with so many names that having a trademark on all of them could render the entire industry in trademark molasses, with legal actions all over the place and nobody knowing for sure whether just putting out a new product will result in crippling lawsuits.
Whatever trademark should be, it should certainly not slow down burgeoning and explosive industries. It's becoming quite clear that craft brewing has a trademark problem.