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.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.
His business will become Pilot House Distilling as part of a settlement with House Spirits Distilling.
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 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?
"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.