Trademark Enforcement Strategy in the Craft Beer Market, a look at Strange Brewing

Conversation in the micro and nano brewing community in Denver has not been focused on the latest new brewery or recent beer competition, but rather on a trademark dispute. The dispute involves Massachusetts-based Strange Brew, LLC and well-regarded Denver microbrewery Strange Brewing Company. The United States Patent & Trademark Office issued trademark registration number 3227867 to Strange Brew, LLC on April 10, 2007. While its trademark registration coverage includes both beer and retail stores featuring beer & wine making supplies, I did not see any evidence that Strange Brew actually sells beer.

Strange Brewing Company was formed in Colorado on June 3, 2009. The Colorado microbrewer won medals at the 2011 and 2012 at the world-renowned Great American Beer Fest, including a gold medal in 2012 for their Dr. Strangelove Barley Wine. They have built up strong brand identity in Denver, and in the craft beer industry.

Trademark disputes in the alcohol beverage industry should increase in the coming years as the number of craft brewers, distillers, and vintners increases.  While the United States Patent & Trademark Office has separate classes of goods for beer (class 32) and wine & liquor (class 33), a brewer is unlikely to obtain a trademark registration for their mark if the same or similar mark is used in the wine & spirits field, and vice versa. The space is crowded, and as I noted several weeks ago, here, Budweiser has pursued an aggressive trademark registration strategy with respect to national airport codes. It has also filed applications for telephone area codes in major U.S. cities – read more, here.

The craft brewing industry is a generally tight-knit community of friendly competitors. This characteristic should always be at the forefront of a brewer or attorney seeking to enforce trademark rights. Expect that a demand letter will be posted on the alleged infringer’s website and Facebook page. It will be circulated amongst other brewers, the beer media, and craft beer drinkers. The absolute model for resolving a trademark dispute in the brewing industry is the widely-covered story of Collaboration not Litigation Ale involving Boulder, Colorado based Avery Brewing Company and Northern California-based Russian River Brewing. And while that solution may not apply to all brewery disputed, trademark lawyers working in the beer industry should take a page out of Jack Daniels’ IP enforcement playbook. The alternative, as the Massachusetts Strange Brew, LLC trademark owner is quickly learning, is that parties that engage an aggressive trademark strategy may be viewed as bad actors.  See this nice article on a dispute involving Coronado Brewing Company from The Brewery Law Blog for another example of the collateral damage a trademark owner can experience when it aggressively attempts to enforce its trademark rights.

The fact of the matter is, and as many arm-chair trademark lawyers have commented recently, the name Strange Brew is not very original. A quick google search for Strange Brew, LLC found businesses operating as Strange Brew, LLC in Shreveport, Louisiana and Austin Texas. The popularity of the Strange Brew name is almost directly attributable to the fabulous, hilarious 1983 Rick Moranis film Strange Brew.  The phrase likely has absolutely nothing to do with the 2010 sitcom also called Strange Brew. It is not a good name for any brewery or home-brewing reseller seeking to develop a brand in the U.S. or Canada. People are more likely to think of the 1983 film than your beer. So, any company using the word “Strange” might be better off changing their name.  And while I am very sensitive to the limited resources available to a new brewery, and understand very clearly how other, more immediate priorities often dictate how resources are allocated, it makes sense to spend some money to work with a trademark attorney early in the process in order to avoid a situation down the road where you may be required to change your name – at great expense to your bank account and the value of your brand.

Also, before responding to a cease & desist letter, consider speaking with a trademark lawyer so as to avoid potentially (and inadvertently) admitting trademark infringement.