This year has been rife with legal battles involving breweries. Anheuser-Busch is entangled in a lawsuit for allegedly hijacking the Patagonia clothing brand, and its recently acquired Platform Beer Co. is in a trademark dispute with Bottle Logic Brewing over the two brands’ extremely similar logos. Yuengling and Anchor Brewing are disputing who owns the term “steam” beer, and, in May 2019, Guns ‘N’ Roses sued CANarchy for trademark infringement over Oskar Blues Guns ‘N’ Rosé ale. And perhaps most publicly, MillerCoors and Stone Brewing have been publicly battling over the former company’s Keystone label’s use of the name “Stone.”
With so many breweries, and evolving intellectual property laws, many companies struggle to create innovative labels and styles without crossing legal lines. But as the craft beer world gets bigger, so can repercussions for these illegal flirtations. Law professionals argue such behaviors could potentially damage a brewery’s brand, as well as its bottom line.
“The primary risk is financial,” Brendan M. Palfreyman, intellectual property and craft beer attorney at Harris Beach in Syracuse, N.Y., tells VinePair. Intellectual property, Palfreyman explains, is “an overarching term that covers various intangible types of property … [including] trademark and copyright. Copyright is meant to protect works of art that are fixed in some sort of tangible form, [while] trademark is a source identifier that tells you where particular goods are coming from,” he says. In the craft brewing industry, copyright and trademark allow brewers to “distinguish [their] goods from someone else’s.”
More often than not, copyright and trademark infringement issues are resolved in a friendly manner behind the scenes. “Most of the time, it’s one brewery calling another brewery,” Palfreyman says. “If it escalates, then [the brewer] serves a cease and desist from an attorney.” If the dispute continues beyond that, it goes to the federal level, he says.
For example, let’s say Brewery A contacts Brewery B because B’s label looks a lot like one A previously released. If Brewery B agrees to stop selling beers with those labels, the costs it incur will depend on the amount of beer packaged, and the packaging itself. A sticker is easier to remove or replace than something printed on a can, Palyfreyman says, and, in the latter case, a brewery “might have to dump the entire batch,” which is considerably costly.
Palfreyman believes a brewery is better off spending its hard-earned cash on a new mash tun or paying its employees, say, “than defending a cease and desist or lawsuit.” In amicably handled cases, “the sender [of the cease and desist] will give you a sell-off period,” Palfreyman says. In other words, “if you have three pallets left, you can sell through it. But next time you print labels, it has to be a different name,” he says.
Additionally, there are marketing concerns. ”[Breweries] are using this intellectual property in order to increase the buzz … [but] whether there’s a downside as well … that’s up for each brewer to decide.”
In March 2017, Richmond’s The Veil Brewing released an imperial IPA, Extra Kreme, in collaboration with Boston’s Trillium Brewing. The printed can label was deliberately designed to invoke Dunkin’ Donuts’ logo, and it even included the phrase, “Virginia Runs on DIPA.” (The coffee-and-doughnut chain’s slogan is “America Runs on Dunkin.”) Less than a week after its release, The Veil posted the following statement on Facebook:
“We often use artistic interpretation in our can designs in a light hearted way. In an effort to avoid conflict with existing brands we have agreed to take down images and advertisements related to Extra Kreme. We hope you enjoy this awesome one-off collaboration and we encourage you to grab some donuts to go along with your now unavailable for purchase Extra Kreme coffee mugs.”
In September 2019, former “Great British Bake Off” host Mary Berry’s legal team issued a cease and desist letter to Armistice Brewing Company of Richmond, Calif., for its Mary Berry pastry stout. In cheeky craft brewery fashion, Armistice crudely changed the label by placing a happy face sticker over Berry’s likeness. It renamed the beer “Cease and Desistberry Pastry Stout.”
Issues like these arise even when national chains and international television stars aren’t involved. In what may have been an innocent case of collective consciousness, between 2014 and 2016, several breweries released brands called “Shower Beer.”
Each beer was geographically and gustatorily distinct — a lager from Virginia, a pale ale from New York, and a lime gose from Connecticut — but the name had been registered by Charlottesville, Va.’s Champion Brewing in 2014. As a result, Connecticut’s Kent Falls Brewing renamed its Shower Beer “Lime Zest Gose,” and New York’s Yonkers Brewing pivoted to “Shower Time Pale Ale.”
Many brewers make light of these legal run-ins, but Palfreyman warns that breweries “should tread lightly, especially with intellectual property outside the brewing industry,” where brands are less lenient. Statutory damages can harm breweries down the line, “regardless of how many [beers] are printed or sold,” he says. “It can be much riskier from that standpoint, even if it’s only one batch.”
A recent example might be Smartmouth Brewing’s Saturday Morning IPA with Marshmallows, a limited-release beer that launched in February 2019. Although there was no official partnership to speak of, the beer’s recipe and label design blatantly take inspiration from General Mills’ Lucky Charms cereal.
According to Palfreyman, this is not a trademark issue because no one would confuse the names Saturday Morning IPA and Lucky Charms. “The case for copyright infringement, however, would be much simpler because the question is about substantial similarity of the designs — whether the goods are related doesn’t matter,” Palfreyman wrote in a blog post for Beervana in 2018. “Statutory damages do not require proof of actual harm and instead damages can be automatically assessed in the court’s discretion, ranging from $750 up to $30,000.”
Be it a Lucky Charms-inspired IPA, or an array of beers that reference the arguably common experience of drinking in the shower, labeling consumer products after cultural phenomena can be risky business. On the bright side, these legal run-ins are mostly preventable. Whether that stops breweries from luring drinkers with legally hazy labels is another case entirely.
It’s all fun and games until brewers’ time — or worse, beer — is wasted.