A look back at some of the craft beer industry’s legal issues (w/ pictures) in 2013 (click on the links below for more coverage):
The people behind Headwaters Brewing came up with the Headwaters name in 2009 and went public with the name in 2010 at the Haywood County Chamber of Commerce business start-up competition. In January 2012, before Headwaters turned pro,Victory Brewing Company released its Headwaters Pale Ale. But Victory also filed a federal trademark application. Shortly after opening, Headwaters received a cease-and-desist letter from Victory. Headwaters remarked that it was a “great lesson in intellectual property protection for do-it-yourself and small business guys” and changed the brewery’s name to BearWaters.
In March, DuClaw Brewing of Maryland sent a cease-and-desist letter to Ska Brewing after registering the EUPHORIA mark for beer. However, Ska claimed use of Euphoria for its pale ale back to 2005 while DuClaw’s application claimed use back to 2006. Ska eventually sued DuClaw in the face of the cease-and-desist letter and proved earlier rights to the Euphoria mark.
Also early in the year, Narwhal Brewery in Brooklyn changed its name to Finback after a dispute with Sierra Nevada. Narwhal Brewery began brewing beer under the Narwhal name in 2010 and created Narwhal LLC in New York in 2011. Narwhal was active in New York homebrewing competitions and served its beer at a variety of New York events. However, in 2011, Sierra Nevada filed a federal trademark application to use the Narwhal name for its imperial stout. Having not started selling its beer and not securing the name with an intent-to-use application, Narwhal was eventually forced to change its name.
Around that same time, Renegade Brewing received a cease-and-desist letter from Sixpoint Brewery (also in Brooklyn). Renegade was brewing a Ryeteous Rye but Sixpoint was brewing its Righteous Ale before that. Renegade changed the name of its Ryeteous Rye to Redacted.
Earlier this year, the Alcohol and Tobacco Tax and Trade Bureau (TTB) issued TTB Ruling 2013-1 which clarified that neither a certificate of label approval (COLA) or a certificate of exemption is required for malt beverages that will not be shipped or delivered for sale or shipment into another state. Check our blog from earlier in the year for more on label approvals.
Florida’s brewers continued their fight to legalize standard 64 ounce growlers. The bill died earlier in the year in the Business & Professional Regulation Subcommittee. Some claimed the reason for such a ban is public health/safety and claim common sense mandates that 64 ounce growlers must be illegal to promote drinking in moderation. Of course, that common sense doesn’t really work when one considers consumers can purchase as many 32 ounce growlers as they wish or just jump straight to a 128 ounce growler.
During the first half of May, the TTB issued Industry Circular Number: 2013-01 providing guidance on the use of social media in the advertising of alcohol beverages. The circular clarified the TTB’s position that the advertising provisions of the Federal Alcohol Administration Act apply to all advertisements in any media, including social media.
In May, Vermont Hard Cider Company, the maker of Woodchuck Hard Cider, filed a complaint seeking an injunction and monetary damages from Woodchuck Coffee Roasters. The founders of Woodchuck Coffee Roasters noted that woodchuck was once a slight for Vermonters that they were embracing with the name of the company. That case is still ongoing. Woodchuck Coffee Roasters are no longer the only brewer of coffee to enter the fray with an alcohol manufacturer on the trademark front.
Lagunitas and Sweetwater had a bit of a tussle earlier in the year over the use of the term “420”. Lagunitas applied for a mark containing 420 and received a refusal from the USPTO, which cited Sweetwater’s mark. Lagunitas’ founder referenced a letter he received from Sweetwater demanding a name change and showed some anger on social media about the way the situation was handled. The 420 mark was abandoned by Lagunitas.
Mustang Brewing Company changed the name of its Route 66 brew to Mustang Sixty-Six to avoid a trademark dispute. A search of the USPTO database shows that Rhineland Brewing Company owns a federal registration of ROUTE 66 for beer. It appears to be brewed in Wisconsin and owned by a corporation in Liechtenstein.
In April, Brewery Vivant sent a cease-and-desist letter to Tired Hands Brewing Company due to use of the name “Farmhands” for one of its saisons. Brewery Vivant was already brewing and selling a farmhouse-style ale it called Farm Hand. The Farm Hand mark registered with the USPTO in December, a few months after Tired Hands agreed to change the name of its saison.
Magic Hat and West Sixth threw some verbal jabs back and forth on social media about their dispute over West Sixth’s logo that Magic Hat claimed infringed its #9 mark. A federal lawsuit filed by Magic Hat was settled when West Sixth agreed to change its logo and remove the “dingbat” star that Magic Hat felt resembled the # in its #9 mark. Of course, the 6 could also be viewed as a 9 that had been turned 180 degrees.
Red Bull threatened to sue Redwell Brewery of the United Kingdom if it did not change the name of its brewery. In a page out of the Monster vs. Rock Art Brewery book, Red Bull caught quite a bit of backlash for perceived trademark bullying and later announced that there was no dispute so long as Redwell agreed not to use the mark for energy drinks. Redwell was likely open to agreeing to that all along.
In Austin, TX, a brewery/market/cafe/concert venue was asked by Dogfish Head to change the name of its in-house Namaste Brewery. The brewery’s general manager threw a number of jabs at Dogfish calling the situation an example of why “cultural imperialism sucks,” and that it was ironic given the nature of the word namaste. The brewery eventually changed its name to Kamala Brewing.
Strange Brew home brew shop found itself in a couple of trademark tussles. One with Strangeways Brewing of Richmond, VA and the other with Colorado’s Strange Brewing which raged throughout much of the year. Strange Brew opposed the application of Strangeways Brewing and each of Strangeways and Strange Brewing sought to cancel Strange Brew’s mark for beer. The homebrew shop has plans to open its own brewery. The lawsuit between Strange Brew and Strange Brewing was finally settled in November.
Great Lakes Brewing was also affected this year. It announced that its Alchemy Hour DIPA would be renamed Chillwave Double IPA. This came as a result of Widmer Brothers’ Alchemy Ale.
Another dispute that last much of the year was that between Oregon Brewing Co. (Rogue Ales) and Rogue 24, a restaurant on the other side of the country. Rogue 24 eventually agreed to change its logo.
An Internet retailer of various products including clothing, magnets, calendars and glassware also found its way into a trademark lawsuit with a craft brewer last year. In August, the retailer filed suit against Shorebilly Brewing Company alleging the brewery was infringing on its registered trademark. Rather than spend time and money to defend the lawsuit, Shorebilly agreed to change its name and held a contest to rename the brewery on Facebook.
The government shutdown put some upstart brewers and their pro counterparts in limbo for a bit as the TTB did not process permits or label approvals.
The dispute between Sixpoint Brewery, creator of the “Lil Wisco” beer, and Stillmank Beer Co., creator of the “Wisco Disco” brew, was resolved more amicably. Stillmank brought its concern about the similarties between the names to Sixpoint’s founder in October after Sixpoint began limited, draft-only distribution of its Lil’ Wisco into Wisconsin (the home of Stillmank Beer). “Wisco” is a reference to Wisconsin in both beer names. Sixpoint eventually agreed to change the Lil’ Wisco name to “Lil’ Wisconsin”
In late October, North Carolina implemented new growler laws that allow retailers, such as bottle shops and grocery stores, to fill growlers up to two liters (approx. 68 ounces). The new regulations more specifically define the term “growler” and provide sanitation and labeling requirements.
Around the same time, Clown Shoes was sues by Vampire Brands and TI Beverage Group, companies that generally market vampire themed wine. As described by Clown Shoes, “[t]hey came to market six months after Vampire Slayer began distribution with a beer made in Belgium called Vampire Pale Ale, but they filed a trademark application prior to our distribution.” I was set to note that it may have been more on the wine guys than the trademark attorneys, but this explains more: “[I]t turns out one of the partners of Vampire Brands , Michael Machat, is also the lawyer for the plaintiff, as he is a patent and trademark attorney. Perhaps this explains the aggressive approach.” I’d say the fact that he is their attorney doesn’t explain the reason that he skipped making a phone call or sending a letter first. That’s just him. Clown Shoes commemorated the event with a brand new label, pictured here.
Trinity Brewing of Colorado Springs apparently received a note from North Coast Brewing over its use of the word Merle in its Merle, Saison Nocturnum. North Coast markets a beer called Le Merle. Trinity agreed to change its Merle mark to You Never Even Call Me By My Name.
Topsail Brewing Company changed its name to Fair Winds Brewing Company after Full Sail alerted the company that it would challenge Topsail’s application for the Topsail name. Full Sail was involved in a similar dispute previously that resulted in a name change for Grey Sail Brewing.
Massachusetts brewers went to the state capitol to push for legislation that would make it easier for brewers to get out of contracts with their distributors when they feel the distributors aren’t properly pushing their products. The distributors fought back by claiming that such a change to the law would actually harm the state’s brewers.
As the year wound down, Citizens Brewing made the news for its name change to Denizens following a dispute with DC Brau. DC Brau sent a cease-and-desist letter in order to avoid potential confusion with its beer known as “The Citizen.”
In Tennessee, a moonshine maker, Ole Smoky Distillery, was sued by The Copper Cellar Corp. over its use of Ole Smoky and Smoky Mountain Distillery. Copper Cellar owns four restaurants that use the Smoky Mountain Brewery name. The case is ongoing.
At the end of the year, Double Barrel Brewery announced it will be changing its name to Bad Tom Brewing. The Brewery received a cease-and-desist letter from Firestone Walker Brewing Co. which produces a “Double Barrel Ale.”
The year ended with Exit 6 Pub and Brewery outside of St. Louis sending a $6 check to Starbucks after receiving a cease-and-desist letter over its use of “Frappicino”. Exit 6 got a great bit of press and changed the name of the brew to the “F Word”.