Craft beer has become a popular trend across the United States, and millions of microbreweries and independent beermakers have been releasing unique craft beers to fulfill the increase in demand. Some are only sold locally while others gain nationwide acclaim through various distribution channels, and craft beer enthusiasts would argue that all craft brews are not created the same. If you are interested in starting a brewery and producing your own craft beer, you should understand the patent and trademark laws involved so you can protect your property from infringement. You should also understand these laws, so you do not inadvertently infringe on other craft breweries’ trademarks and intellectual property.
Four Reasons Legal provides robust trademark protection and registration services for our business clients. If you have opened a craft brewery or plan to do so in the near future, it is a good idea to register the trademarks for your beers well in advance of releasing them for commercial sale. Review the following information so you know what to expect from this complex process.
The short answer is yes, beer names are typically trademarked to prevent competing breweries from capitalizing on the popularity of a particular beer. Once you have committed to releasing your own beer for sale, you must complete the necessary trademarking processes to protect your property from infringement and assert your legal ownership rights over your new beer products.
If you look at any bottle of craft beer available today, you will notice three distinct markings that differentiate it from other beers: the name of the brewery that produced it, the name of the beer, and the label design. All three of these elements require their own trademarks. Therefore, if you plan to release three different craft beers, your trademark application process will involve nine distinct trademarks. However, you will be able to file their registration paperwork concurrently.
There are a few factors that differentiate craft beer from regular beer. The first is alcohol content—most craft beers have a higher alcohol content than regular beer. The second is the type of brewery that produced the beer. A brewery qualifies as a craft brewery if less than 25% of the business is owned and controlled by an alcoholic beverage industry member that is not a craft brewery.
Craft beers have gained popularity due to their uniqueness and inherent scarcity. Many craft beers are produced and released locally, so if you try a craft beer at a local taproom, you may never encounter that same beer again outside of your community. Most craft brewers focus on nuanced flavors that can be very difficult to replicate from batch to batch, whereas regular beer brewers focus on consistency and mass production. In addition, most craft breweries operate within their local communities or statewide; any breweries that expand beyond state borders typically struggle with distribution unless they gain widespread popularity and demand for their beers skyrockets.
Finding the right name for your new craft beer may be just as difficult as creating the beer itself. If you plan on commercially producing your beer, you must ensure that your desired name is not already in use. An experienced trademark attorney can help you with the trademark search process to ensure your desired name is available for registration. If some other craft brewery has already registered a trademark with your desired name or a name that is confusingly similar to the one you want, you will need to think of a new name.
Choose a name that reflects your overall style and your brewery. It should be easy to pronounce, fun to say, and have something catchy about it that will garner the interest of the market where you intend to release it for sale.
If you want to profit from your craft beer, effective marketing is essential. Today, one of the most effective marketing channels available to businesses of all sizes is social media. One of the best ways to advertise your craft beer is to research the qualities of your target market and develop interesting social media ads that encourage them to look for your beers locally.
You can also market your craft beer by partnering with local businesses. For example, you could work with local restaurants and inquire about placing your craft beer on tap, letting restaurant patrons quickly spread the word about your fantastic new craft beer. Being active in your community and partnering with local businesses is a highly effective way to get the word out about your beer. However, before you do this, it is essential that you have the appropriate trademarks in place so you can legally sell and profit from your new craft beers.
The trademark registration process is more complex than many people realize. You must ensure that your desired trademark is not already registered to another party, and you must register it correctly using the right filing status. To do so, you should work with a trademark attorney who can help you conduct an extensive trademark search. The United States Patent and Trademark Office (USPTO) offers a searchable online database you can use on your own, but a trademark attorney will have access to third-party databases that can provide more detailed results.
Once you are certain that your desired trademark is not already in use, you can proceed with the filing process. Remember, there are three components to your craft beer trademark: the brewery name, the beer name, and the label design. Your attorney can supply professional guidance as you arrange these three components of your craft beer trademark and help you file them together, saving you time and money on the trademark registration process.
It is also vital to remember that you must provide a specimen of how you intend to use the trademark as well as the filing basis. If you are already using your trademark commercially, you can file under the commercial use basis. If you plan to use your trademark commercially in the future, you will file under the “intent to use” basis.
You may notice a registered trademark that is quite similar to yours during your trademark search. Consult with your attorney to determine whether this may pose a problem for your trademark registration. If the existing trademark is similar enough to your own that it may confuse consumers, it is likely that the USPTO will reject your application. However, if the trademark exists in a market separate from your target market, like a trademark for a clothing line or electronics product, you may be able to successfully register your trademark. In this case, it would be unlikely for a consumer who desired to purchase clothes or electronics to purchase craft beer with a similar trademark by mistake.
It is also important to remember that when it comes to food and beverage trademarks, your trademark will protect the appearance of your craft beer on store shelves, but it will not protect the formula you use to create it. If you want to protect a secret beer recipe, you should consult your attorney about trade secret protection.
Imagine a brewery opens in your hometown and sells craft beer for several years without ever registering a trademark. The brewery gains notoriety and a dedicated following of local customers without any trademark protection. A few years after they began business, a new brewery opens nearby with a remarkably similar name and similar products. While it may seem like the first brewery could do nothing to prevent the new brewery’s actions, this is not necessarily true. Even though the first brewer did not register a trademark for their brewery and their craft beer, just by using these intellectual properties in a commercial manner for such a long time, they have gained some legal protection through common law trademark.
Every state has different laws pertaining to common law trademarks and the protections they afford. If you have already been using your desired trademark commercially and it does not create any confusion with an existing trademark, you should encounter a straightforward process when you formally submit your trademark registration forms. Your trademark attorney can advise you regarding whether you have any common law trademark protection for your craft beers and guide you through the process of ensuring more robust protection at the USPTO level.
The term “trademark infringement” refers to the illegal use of another party’s registered trademark or creating confusion with an existing trademark. When done intentionally, infringement usually occurs to capitalize on an existing trademark’s popularity. A common example of this scenario are “knock-offs” of designer clothing and accessories. When trademark infringement occurs, the trademark owner has a few options for legal remedies to put a stop to the infringement and protect their brand.
Typically, the first method of ending trademark infringement is sending a Cease-and-Desist Notice to the infringing party. This letter notifies the infringer that they are violating trademark law by using a trademark illegally and asks them to cease all operations that constitute infringement. However, there is nothing stopping the infringing party from ignoring this letter and continuing their infringement. If this occurs, you and your trademark attorney can take things to the next level by filing a lawsuit.
Filing a trademark infringement lawsuit typically involves citing lost profits or damaged brand recognition due to the infringing party’s actions. If the case proceeds in your favor, you can potentially recover several types of compensation from the case. Common compensation types include repayment of lost profits and additional damages for the ill effects your reputation suffered due to the infringing party’s actions.
Your trademark attorney will help you with the initial registration process for your desired craft beer trademarks, and your case will be assigned to a USPTO examining attorney. The attorney will review your application and determine whether your desired trademark is already in use or is available for your registration. Then, you will have your registered craft beer trademarks and can begin using them as desired if you are not already using them commercially.
Once your craft beer and spirits trademarks are registered appropriately, it is important to remember that you have further responsibilities if you want to ensure that your intellectual property remains protected. First, you must keep using your trademark. If you open a craft brewery, register your craft beers’ trademarks, and stop selling those beers after some time, it is possible for another craft brewery to register a trademark similar to yours and claim that you have abandoned the mark. If you continue using your trademark consistently, you will still need to re-register the trademark every time it expires, which is usually ten years after the initial registration date.
It is technically possible to register your trademark without the help of an attorney. However, trademark registration is a much more tedious and complicated process if you attempt to handle it alone. An experienced trademark attorney can provide detailed, professional insights and streamline the process significantly. With an attorney, you stand to save both time and money on an otherwise complex and stressful process.
Your trademark attorney can assist with all phases of the trademark registration process. They can ensure a comprehensive trademark search, combine your desired trademarks into a more manageable filing, and help you secure trademark protection much sooner than you may expect. Your attorney can also help you develop an appropriate trademark specimen that ensures the USPTO registers your trademark for the type of commercial use you intend.
Having reliable legal counsel on your side for registering your craft beer trademark is a tremendous asset. Four Reasons Legal has years of experience assisting intellectual property owners throughout the Denver, CO area with their trademark registrations and related legal concerns. If you need assistance registering a trademark for your new craft beer, re-registering an existing trademark, or opening infringement proceedings against another party, we can help. Contact us today for more information about the trademark services we provide.