Tough Topic: Welcome The Lawyers

Where there is money there are lawyers.  Like sharks smelling blood, lawyers have begun to play a role in craft brewing.  More and more I read a story about craft beer makers suing each other or at least having lawyers draft letters threatening or otherwise.  Often the news story includes some line about how this is rarely seen in the craft beer community.  Of course lawyers were rarely seen ten years ago.  No one thought there was money worth fighting over.  People hire lawyers to be vindictive or to protect assets.

Marble City vs. Marble Brewing

Over the last few years we have seen some serious issues start to crop up.  One of the biggest is trademark disputes.  One of my personal favorites is Marble Brewing (est. 2008 Santa Fe, NM) vs Marble City Brewery (est. 2011? Knoxville, TN).  When Marble City started up they researched a name.  “Marble” was used by two other breweries in England (not sold in the US) and another in New Mexico (only sold in the Southwest).  Neither of the other Marbles used the word “city” in the name.

In order to have a trademark dispute the plaintiff must show that there is a likelihood by the consumer to be confused by the similar mark and unable to easily tell the difference.  Usually there is no dispute if the two are not, or unlikely, to be sold in the same geographical market.  In the Marble case the two were geographically far away.  In order to make sure Marble Brewery’s suit was successful they expanded from New Mexico to Knoxville, TN just to compete in the same market.  This is what I call an asshole move.  The website of Marble Brewing discusses local fresh beer.  The owner only moved into a new market to intentionally cause an issue.  A quick Google search can tell you exactly who the craft beer drinkers of Knoxville are backing up.

Bell’s Lawyer Happily Billing Away

This is not the only brewery with a lawyer.  Bell’s Brewery from Michigan fired off a cease and desist letter threatening legal action against Northern Brewer Homebrew Supply if they did not stop selling a clone recipe of Two Hearted to home-brewers under the name Three Hearted.  This ignited a backlash in the community with claims by many that they would boycott Bell’s.  This is not the only time Bell’s has looked to lawyers.  Bell’s is also reportedly opposing Cold Spring Brewing in Minnesota from releasing a beer named Third Street citing confusion with Third Coast.  Apparently anything with the word “Third” in it belongs to Larry Bell.

Don’t Worry There Are More!

Other cease and desist issues have come up with Gordon Biersch and Oskar Blues over the term “Gordon”, Lost Abbey and Moylan’s fought over the shape of tap handles as well as Troegs and Fegley’s Brew Works fighting over “Elf”.  My personal favorite and one that sparked a lot of backlash was Abita claiming they owned the term “pub crawl”.  Yeah, that took a matter of days for Abita to backtrack on after angry beer drinkers carried torches through the streets.  Metaphorically, not actually carrying torches, but that would have been cool.

What Is Next?

When a brewery considers the cease and desist they should look at the impact it will have on their bottom line.  I expect Marble Brewing has lost money exporting to Tennessee.  Bell’s although not going out of business, has some customers unwilling to buy their beer temporarily and possibly permanently alienated others.  It should be noted that if you do not take action to protect your mark you may lose it.  There are other options a brewery could use to protect themselves like licensing.  A licensing request if worded correctly and offered for a paltry sum to an infringing party may satisfy the Trademark Office and not piss off your customer base.  Breweries need to remember that customers in craft beer are loyal to craft and not loyal to individual brands.  Each customer searches out beer not just based on flavor, but also for preferences in environmental, business or social practices of the brewery.

I strongly think there will be more of these suits in the future.  A Chicago upstart, Finch Beer, just released a Cut Throat Pale Ale and Odell Brewing has been selling a Cutthroat Porter for years.  Will these two breweries cross paths?  I don’t know.  They are selling different styles in different markets with a name based off a fish,  but Two Hearted is a Michigan river.  Will Anheuser-Busch start enforcing the “Goose” term?  There is more than one Revolution Brewing in the US, and several breweries have a fresh hop beer.  If the industry truly wants to continue its creativity and not waste capital on lawyers the Brewers Association is going to have to start getting involved in coming up with guidelines for the membership.

I want you all to clearly understand something when it comes to lawyers.  Whether it is a lawsuit, divorce or trademark, the lawyer gets the money.

Tags: Bell's, Business, Legal, Marble Brewing, Marble City