Wednesday, October 13, 2010

Making the Business of Beer a More Difficult Place to Be

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.


  1. I've never heard the term Beervana in relation to Portland or any specific place.

    Google returns for "beervana":

    #1, an Oregon beer blog

    #2 Beervana beer fest in Rhode Island

    #3 Jeff Alworth's (the blogger behind twitter profile

    #4 Oregon Public Broadcasting program about Portland's role in the craft beer movement

    #5 A New Zealand brew fest also called Beervana

    #6 Portland Oregon's Wikipedia entry, which mentions "beervana" as a nickname marketed by the Portland Oregon Visitors Association, along with "brewtown"

    #7 Interestingly, the seventh hit is for The Bayou, a Salt Lake City, UT bar and restaurant which promotes itself as, "Welcome to Beervana™ The homepage of The Bayou™" on it's beers page

    Texas isn't the only place with TM designs on Beervana, but from that quick Google search, I'd say Portland's own claim is nothing approaching exclusive.

  2. Yeah, I don't necessarily buy the "genericness" argument either - you've pointed out just a few of the contradictory facts. But, really it's a factual issue that I'm sure you can find plenty of support for. Which still doesn't change the point of the post, which is that these ARE becoming issues.

  3. Maybe it's my west coast brewing roots talking here, but there's no place but Portland OR that says "Beervana" to me. To a layman that doesn't mean exclusive rights to the term, of course, unless expressly trademarked by a municipality or organization (but how un-Portland would that be?). So maybe it's the casual arrogance in Portland's undeniable brewing prowess that's left their unofficial title unreserved and rife for the picking.
    It would be kind of like Minneapolis trying to call itself "Titletown". Sure it might piss some folks off, but if it got your attention, that's marketing, right?

  4. I'm still kind of annoyed with an out-of-state brewer forcing Gak off his long-standing website because they claimed rights to the name, though never used it. A quick check shows that brewery x is still not using that domain. is still alive and kincking though.

    The best story of name conflict resolution IMHO is the Avery/Russian River "Collaboration Not Litigation Ale", a blend of each of the breweries' Salvation Ale. THAT's the gentlemanly way of sorting things out.

  5. Definitely think the Collaboration was a great way to resolve the issue. Unfortunately, that doesn't happen very often. But is a good example David v. David that comes out favorably.


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