Jeff Alworth, of Beervana, wrote an article about a Texas brewery that has dared to trademark "Beervana". Basically, the gist of the article is this: Portland is and has been known as "Beervana" for a very long time, a Texas brewery shouldn't be able to pull this out of the public domain and use it, but whatever, we're not too pissed because we're too stoned and drunk to do anything about it. OK, I made that last part up.
Because the reality is pretty simple. An enterprising person or brewery with a few grand to kill in legal fees could challenge the registration (a "cancellation" proceeding) on the grounds of "genericness" or even "geographical indication". Because, if, indeed, Portland/the Pacific Nortwest is and has been known as "Beervana", it would be similar to me trying to me trying to trademark the word "Badger". In other words, in a technical, legal sense, the Trademark Office should require a disclaimer of any descriptive or generic portion of a mark - since the entire mark, in this case, is generic/geographic in origin, the mark should have been disallowed.
I'd be happy to take this on for someone. My rates are reasonable.
But, the bigger point that Jeff makes is this: "As micros get more and more macro, we're going to run up against these kinds of seizures of the psychic landscape of brewing. It's not a tiny brotherhood anymore; it's big business." You'll recall the "Monster v. Monster" debacle last year. Monster Energy was legally in the right. But the court of public opinion felt very differently. But the sentiment is correct. As more and more breweries get in on the business, there will be landgrabs for territory, landgrabs for equipment, landgrabs for trademarks.
What if Lake Louie, for example, were to start selling in Iowa? What if shortly after hearing that Lake Louie was coming, an Iowa brewery started selling "Coon Rock Ale"? Then Lake Louie comes into the market, who gets priority? What's fair?
I can give some legal answers, of course. We can look at priority dates and dates of first use. We can evaluate the mark as applied to the goods and services. We can go through the Polaroid factors to determine the equities of infringement.
But does any of that matter in the court of public opinion? No. I have to tell clients frequently: just because you can, doesn't mean you should. The intricacies and nuances of legal protection do not translate well when the opposition is: "F- you outsider, leave my people alone."
It seems pretty "easy" when you have David v. Goliath. What about when it's David v. David? The "bad guy" stuff - like my example above about "Coon Rock" and intentional infringements - are pretty easy. But what about the more usual case, where the problems are a little more difficult.
Here's a hypothetical taken from a real case - the names have been changed to protect the innocent. What do you do?
Offsides Brewing Company, a relatively new upstart founded in the late-90s/early 2000s in Wisconsin. For the past 7 years they have been growing steadily and are just starting to take their first steps outside of the state - some distribution in Minnesota (started in 2005), some in Illinois and Indiana (in 2007), a few cases make it back to Ohio where the head brewer is from just to satisfy a very local market there (2010). But Offsides is definitely interested in national distribution - they just aren't quite there yet. They are in discussions with distributors in Missouri, Maryland, California, and Iowa. Given this basic fact scenario, evaluate the following situations? You have 2 hours to answer this question. [ed note: sorry, I blacked out during the flashback to law school exams.]
A. Offsides finds out about a winery in New York called "Offsides Winery". The winery was started after Offsides Brewery, but was unaware of the brewery.
B. Offisdes finds out about a brewery in California called "Offsides Brewery". The brewery was started after Offsides Wisconsin.
C. Offsides finds out about a brewery in Missouri called "Off-the-Side Brewery." The brewery was start before Offsides Wisconsin.