Craft Beer Trademark Battles
As many of my readers are already aware, San Diego has become known as one of the world’s top producers of craft beer. Time Magazine recently referred to SD as “the hoppiest place on earth.” Our local media and elected officials can’t stop talking about all of the jobs, revenue, and recognition brought to San Diego by this booming industry. As a San Diego resident for most of my life, I can’t help but be attuned to this phenomenon. So I tend to pay special attention when trademark issues arise in the craft beer business. A recent story regarding Renegade Brewing’s receipt of a cease and desist letter – and their clever response – prompted a review of some past issues in this area.
As the craft beer industry grows, the potential for trademark conflicts will only increase. Locally, the case that comes to mind is Ballast Point’s Yellowtail Pale Ale. Everybody still calls it “Yellowtail,” and the logo features a fish with a yellow tail. But as of a few years ago, the word “Yellowtail” was removed from all branding, leaving the beer with the name Ballast Point Pale Ale – despite the fact that all of Ballast Point’s other offerings have fish in their names (e.g. Big Eye IPA and Black Marlin Porter).
Why did Ballast Point change the name of their Pale Ale? No official statement was ever released, but the San Diego Beer Blog, among others, suggested that is was due to a legal dispute with the producer of Yellow Tail wines, Australia’s Casella Wines, who own several U.S. Patent and Trademark Office registrations for the mark YELLOW TAIL.
One can assume that the parties came to a private settlement, because Ballast Point’s Owner/CEO, Jack White, told the Beer Blog, “We are changing the name for legal reasons. We can’t discuss the issue in detail…”
Despite this well-known cautionary tale, breweries continue to adopt names that may put them in direct conflict with competitors. This week, Denver’s Renegade Brewing Company announced that they are changing the name of their best-known beer, Ryeteous Rye IPA. Apparently, they received a cease and desist letter from Brooklyn’s Sixpoint Brewery, the producer of Righteous Ale. Sixpoint has a USPTO registration for the mark RIGHTEOUS ALE, claiming use of the mark in commerce dating back to November 2005. From a trademark perspective, the words “RIGHTEOUS” and “RYETEOUS” can be considered essentially identical. As a general rule, slight spelling variations are not sufficient to distinguish between marks, especially in this case, where the goods (beer) are the same.
Renegade’s new brand name will be “Redacted” – a clever commentary on their legal issues.
As Renegade pointed out, there is a well-known example of two breweries taking a different, more positive approach. Avery Brewing and Russian River Brewing each produced a beer under the brand name “Salvation.” Rather than getting into a dispute over the name, the breweries decided to work together to produce a special beer under the name “Collaboration Not Litigation.” While I haven’t had a chance to try that particular brew, I’m sure it went down smoother than a whole lot of attorney’s fees.
I don’t question Rengade’s intentions, and of course I have no way of knowing how much due diligence they did before they adopted the “Ryeteous” name. If I had been advising them, however, I would have suggested they approach Sixpoint and try to work something out before using the name. Examples like the Avery/Russian River collaboration are sadly rare. I wish Renegade the best of luck with their Redacted Rye IPA, and I look forward to trying it one of these days. Hopefully with this latest story circulating through the business, they will be the last craft brewer to be forced into changing their name due to a trademark conflict. An once of prevention is worth a pound of cure; in this case, I’d recommend a full pint of prevention before selecting a beer name.
Cheers!
