Trademark Considerations for Craft Brewers

Drastically smaller than major U.S. brewers such as Anheuser-Busch and MillerCoors, craft brewing companies and the even tinier, hyperlocal subset of microbrewers nevertheless continue to grab an increasing share of the beer market. As consumers prioritize unique tastes and hometown businesses, the number of craft brewers is exploding, going from 3,814 in 2014 to 7,346 in 2018.

The challenge for these types of brewers becomes standing out in a crowded market, and there are few better options than a good marketing plan – including a good brand name. The craft beer scene is filled with unique labels and fun names. Of course, the problem again is finding a brand that differentiates a brew from the thousands of other IPAs, stouts, sours and lagers on tap.

Simply having a name is not enough – the next move is to protect it with a trademark. This can be easy or surprisingly hard, depending on the name. To make this part stress-free, there are some considerations to make:

Do some homework

When applying for a federal trademark, all applicants must go through the U.S. Patent and Trademark Office (USPTO). The agency provides resources that can give a base understanding of the trademarking process and has a searchable database of registered marks and pending applications. Importantly, a search here will only find federally registered trademarks and pending applications, not those that are pending or have been registered in a specific state. Still, it is useful to see what is already registered. A Google™ or other Internet search can be conducted to locate other such marks.

Avoid similarities

With hundreds of new brewers arriving on the scene each year, there is bound to be an overlap in brand names at some point. It is not always enough, however, that two names are not exact matches. The ultimate test that an examiner with the USPTO will use – or a judge or jury in an infringement case – is whether a mark would be confusingly similar to a consumer.

For example, consider a brewer who is bringing a beer to market and wants to name it Magic Frog Ale, but there is another beer on the market with the trademark Mystic Frog. Those names are close enough that it could create a concern. A consumer may be seeking out the second beer but only remembers the Frog part of the name. The critical question is: Would the shopper mistakenly buy Magic Frog in this case? There is even a well-known, real-life brewery named Magic Hat® that could throw another wrench into the confusion.

In that example, if the new brewer is set on using Magic Frog, they may want to think about going further to differentiate the brand and the product, perhaps by adding more words and/or a distinct logo. It is hard to say how much differentiation is enough, however, as there is a level of subjectivity among trademark examiners and courts.

The state is an option

If a brewer has no plans to do business outside of their home state, a state trademark may be a preferable option to a federal one. Registering with a state has lesser geographic scope and protections, but it does create a record of when an owner began to use a specific mark, which can be valuable in a potential infringement lawsuit. The process to get these marks is normally faster and less expensive, too. State registrations, however, cannot use the ® symbol; instead, the owner can only use TM for trademark or SM for service mark.

Be it at the federal or state level, trademark registration is a more nuanced process than it appears at first, and this list only scratches the surface of what people should consider and the options available to them. For more on trademarks – in any industry – please reach out to David G. Oberdick at [email protected].
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