Where have all the good craft beer names gone?
In 1899, then Commissioner of the US Patent Office Charles H. Duell commented that “everything that can be invented has been invented.” One wonders if Duell were alive today whether he would feel the same way about names for craft beers.
According to the Brewers Association, there were 4,225 brew pubs, microbreweries and regional craft breweries in the United States in 2015. That compares to a mere 794 in 1995. As you might imagine, each new craft brewery strives to choose a name for its brewery that attract and invites potential customers. In addition, as each craft brewery produces new and unique beers, these beers need catchy names as well.
A recent search of the records of the US Trademark Office revealed over 22,000 active registrations and published applications for beer names alone. With so many craft breweries, it seems like nearly every beer and brewery name imaginable has been taken. This presents significant challenges for new breweries as well as existing breweries looking for names for its new and unique brews. As crowded as the market has become, it is increasingly difficult to come up with a new beer name without an ensuing legal battle.
To further complicate things, US trademark law includes wineries and distilleries in the same class as breweries. So not only does a brewer need to navigate the mine field of 22,000+ other beer names, but it must also ensure that its chosen name is not too similar to the name of a wine or spirit. US trademark law also allows for imagery in a logo to be protected. For example, Bell’s Brewery is the owner of a US trademark registration for an image of a sun representing a human face or an animal.
Disputes over naming rights to beers are often settled in quasi-judicial proceedings before the US Trademark Office. In 2013 Tin Man Brewing Company lost its bid to trademark the name TIN MAN based on a challenge filed by Turner Entertainment Co., the owner of the rights to the trademarks associated with the Wizard of Oz motion picture. Litigation before the courts is not uncommon either. Earlier this year the Brooklyn Brewery Corporation of New York successfully enjoined Black Ops Brewing Inc of California from using “Black Ops”, “Black Ops Brewery” and all similar marks in connection with its brewery and beers.
So how does a responsible brewer navigate this minefield? First, it is a good practice to conduct internet and other trademark availability searches for the name and/or logo prior to investing in marketing or beginning sales of a new brew. An assessment of any similar or conflicting marks should be made before proceeding. If a search determines that a name is available, the brewer should seek to protect the name and/or logo with a US Trademark. If sales are not imminent, it might even be advisable to file an intent-to-use trademark application to seek clearance prior to going to market. By investing in a good pre-production trademark strategy, a brewer just might avoid a costly dispute down the road.
