Brand Defense Mechanisms
Like trademarks themselves, disputes over trademarks must be unique. They’re each highly dependent on the individual set of facts at hand. So unless significant marks for large brands are at stake, these stories can have little impact on anyone outside the companies involved. About a year ago, the federal suit Lagunitas filed against Sierra Nevada over the typography used for “IPA” threatened to delay the national launch of Sierra Nevada’s new Hop Hunter. It quickly became one of the most high-profile beer trademark disputes in recent memory. But it ended quickly. Lagunitas dropped the suit the following day. Sierra Nevada never needed to file a response.
Though no other beer-related trademark dispute may have been talked about as much, issues persist. That’s because at the crux of beer-naming disputes is the continued acceleration of the number of breweries opening in the U.S. By late 2015, two breweries opened every day. By the Brewers Association’s count, the country now has more operating breweries than at any other time in its history.
More folks continue to file for brewery permits with the Alcohol and Tobacco Tax and Trade Bureau (TTB), the federal agency tasked with much alcohol regulation. The number of brewery permittees jumped 140 percent to 5,780 between 2011 and 2015. The number of labels being sent to the TTB for approval keeps mounting, too. The annual number of malt beverage label approvals processed by the agency hasn’t grown at quite the same rate as brewery permits during the same period, but it still almost doubled to over 40,000 during fiscal year 2015.
Naturally, this growth in the number of beers and brewers in the market increases the likelihood that applications for beer trademarks will be contested because of perceived similarities to existing marks. That’s one way that developments in the industry affect trademark issues. If the value (potential, perceived or real) of either the existing mark or the new mark is high, as in the IPA case above, then the reverse is true. That is, the trademark case can affect the industry.
Another pattern of decisions from the U.S. Patent and Trademark Office (USPTO) and its Trademark Trial and Appeal Board (TTAB) is being closely watched because of the interplay between industry trends and trademark decisions. The USPTO repeatedly denied registrations for beer marks due to their similarity to existing wine or spirits marks. All registrants file for marks under certain numbered classes of goods. Beer falls into Class 32 with most nonalcoholic drinks. Wine, spirits and all other alcoholic beverages fall into Class 33. When evaluating registration of a mark, the USPTO can evaluate existing marks in the same class as well as in related classes of goods. Increasingly, beer marks are being denied because reviewers deem beer and wine to be sufficiently related that consumers could be confused.
Throughout 2015, breweries worked together to formulate arguments to fight this pattern of decision making. Late in the year, the appeals board reversed an earlier examiner’s denial of the “Reuben’s” mark for beer because of the existing “Rubens” wine mark. Evidence presented showed that only a small fraction of beer and wine comes from the same source company and that marks shared by multiple forms of alcohol are also rare. The TTAB agreed.
While we’re a long way from it becoming the norm, it is becoming more common for companies to produce beer as well as wine, spirits or other alcoholic (or nonalcoholic) beverages. And more of them share brand names across these categories, too, particularly breweries that expand into distilling, or cider and mead making. Anchor, Ballast Point, Cigar City, Dogfish Head, New Holland, Rogue: all brand names used by the same companies for both beer and other beverages.
It’s not just beverages, though. Some beer companies sell branded food items: pickles, hot sauce, ice cream and meats, made in-house or produced elsewhere. Particularly common for companies already in the food business via brewpubs, these items create opportunities for brands to expand their reach to new markets, new sales outlets and new consumers. The added opportunities come with the added responsibility to protect trademarks held in new classes of goods.
That, in turn, has been used at least once to defend an existing beer trademark. Holders of trademarks must defend them, including by opposing registration of marks they believe could weaken the strength of their own. Last year, Allagash Brewing opposed a jam maker that sought registration of the “Allagash Wild” mark for jam. The appeals board agreed that, at least in this case, beer is “sufficiently commercially related” to jam that consumers could indeed be confused into thinking they came from the same source.
In light of all this, look at another growing industry trend: beer brands created in collaboration with another brand operating well outside food and drink. The last year brought us a number of beer brands created through partnerships with sports organizations or individuals, like Southern Tier’s launch of One Buffalo or the Ragin’ Cajuns beer created by Bayou Teche with the University of Louisiana at Lafayette. How about beers made specifically for bands? How could they affect all the unofficial brands out there?
Christopher Shepard is a writer and editor for Beer Marketer’s Insights and Craft Brew News.