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  • Writer's pictureDenny Esford

We Are Living In A Material World – Full of Trademark Issues

Craft beer has become one of the biggest new trends in the past few years. Small breweries are cropping up all over the country, and they’ve been producing more creative, interesting beers. With more brewers, however, comes more competition. These breweries are fighting not only to make the best tasting beer, but also come up with the most catchy names and compelling marketing. This becomes an issue when brewers look to trademarked media for inspiration.

To those who have never put the concept of intellectual property and craft beer together, this may surprising to learn for example, that naming your beer “Barrel of Monkeys” may land you in legal trouble. But the number of lawsuits are increasing as new beer trademark applications come flooding into the U.S. Patent and Trademark Office (USPTO). And with the number of applications in 2016 alone topping the 5,000 mark, we can certainly expect more. Several high profile companies have recently filed oppositions to trademarks sought by breweries.

After a trademark application is filed and is found to be valid by the USPTO examining attorney, it is published in the Official Gazette, a weekly publication. If other trademark owners feel this new mark may damage their existing trademarks, the trademark owner can come forward and file an opposition. If the opposition initially goes unresolved, an opposition hearing is held in front of the Trademark Trial and Appeal Board, who will determine if the mark can move to the next stage of registration.

Why do some companies, celebrities and other trademark owners take issue with beers being named after their own marks? From a legal perspective, it is all about the consumer. Companies have spent years establishing good reputations and developing goodwill with their consumers, and some feel that having an alcoholic beverage display their mark may damage those reputations. Recently, oppositions have been filed by Hasbro, Warner Bros., and Madonna, to name a few. Each has a target audience of children or young adults, and none want their marks to be associated with promotion of drinking alcohol.

Hasbro believes that a beer named “Barrel of Monkeys” calls to mind their kids game, and did not want the association to confuse their customers. Similarly, Warner Bros. filed against the beer “Golden Ticket,” a chocolate stout that clearly references the movie Willy Wonka and the Chocolate Factory. Most recently, Madonna filed an opposition against a Texas brewery for their beer “Malterial Girl,” claiming that it was too phonetically similar to her clothing and lifestyle brand “Material Girl,” and would cause consumers to think that the two were associated.

This new crop of oppositions is provoking interesting discussions among trademark owners and their intellectual property lawyers. Breweries have to fight to be noticed,–creativity in naming and advertising is often their best tool. But, brewers must still be mindful of existing trademarks and the damage that could be done to them if they are associated with alcohol. It is a tricky way to operate, but we look forward to seeing what creative new beer names are on the brewers’ horizon.

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