As the Craft-Beer Industry Grows, So Does the Battle for Branding

Starbucks sent a cease-and-desist letter to Exit 6 Pub and Brewery in Cottleville, Missouri, last month after the megacorporation discovered that one of the brewpub's customers named a beer "Frappicino." The brewery's owner, Jeff Britton, sent a letter to Starbucks' lawyers in response, sarcastically stating that he will never use their ilk ever again, along with a check for $6 for using its trademark that he refers to as "the F-word."

"The idea is to police your mark," Appel says. "Use it or lose it."

As more and more breweries set up shop here, South Florida breweries are not entirely unaffected. Laid-back bearded dudes who just love to brew quickly find they are now businessmen who must deal with the type of legal wrangling that affects all businesses.

Ross Appel, a small-business attorney who also specializes in brewery trademarks with Komlossy Law P.A. in Hollywood, says this is not an uncommon thing.

"The idea is to police your mark," Appel said. "Use it or lose it. It's something that needs to be done if there is a potentially infringing situation."

Cease-and-desist letters are a common tactic among businesses to eliminate any confusion over the source of a product. A common instance of copyright infringement occurs when two companies in the same industry have similar names or similarly named products.

Breweries, in particular, lean toward names that identify their hometowns. This is a problem because the U.S. Patent and Trademark Office does not allow trademarks on geographically descriptive terms.

A situation like this arose about a year ago. One company known as Miami Beer Co. sought to trademark its name but couldn't. Miami Brewing Co., which is affiliated with Schnebly Redland's Winery in South Miami-Dade, tried to register its mark as well but couldn't, for the same reason.

Generally, a company with a geographically descriptive trademark can refile for a principal trademark after it has been selling its product for five consecutive years. This happened with Brooklyn Brewery. Otherwise, the trademark is placed on a supplemental registry, which means that the company can keep the mark but will not receive the legal protections from a principal registry. According to Appel, trademarks containing the ® next to it could indicate a supplemental registry but usually are meant to warn other companies not to use that mark.

Miami Beer Co. tried to appeal the USPTO's rejection, arguing that Miami refers to several locations, not just one, but the agency wouldn't have it. And even though Miami Brewing filed a trademark application after Miami Beer's, it will most likely receive a supplemental trademark because the company began selling its product before Miami Beer Co. did.

"When it comes to geographic trademarks, you can't have exclusive rights because it could exclude other vendors who want to use the name for their company," Appel said.

For the time being, South Florida's homegrown breweries have stayed above the legal fray and continue to coexist peacefully. Trademark bullying, defending the mark, business as usual, or whatever you want to call it, cease-and-desist letters are an effective method for businesses to protect their trademarks.

 
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