The label in question is "Categories 1-5" of Big Storm's Hurricane Series of Belgian-style beers that Halker says is similar to Due South's series of IPAs, which range from Category 3-5 and are part of the brewery's flagship beers.
It's unclear if a cease-and-desist letter was sent to Big Storm, although Halker said he contacted the brewery last week and that an attorney was involved. Halker, who founded Due South in 2010, filed a trademark for Category 5 IPA, which expired in April.
"We asked them to stop and they said no. They basically told us they're going to do whatever they want."
This situation draws a parallel to the case of Tampa-based Coppertail Brewing Company, which filed a trademark lawsuit against Boynton Beach's Coppertop Brewing Company — which changed its name to Copperpoint — two years ago.
Further south, Miami Brewing Company sent a cease-and-desist letter to M.I.A. Brewing in February for the latter's use of its name — esxcept in this case, it refers to a geographic descriptive label, which typically don't receive as much protection as more creative trademarks.
"The idea is to police your mark," Hollywood-based attorney Ross Appel told the New Times in a previous interview. "Use it or lose it. It's something that needs to be done if there is a potentially infringing situation."
And Halker did, although the response he received wasn't the one he wanted. "We asked them to stop and they said no," Halker says. "They basically told us they're going to do whatever they want."
The New Times left a voice message with Big Storm owner Mike Bishop, although he hasn't yet responded. We'll update the post when he does.
Update: Big Storm CEO Jonathan Golden got back to the New Times and in an email defended his brewery's use of the terms "Category 1" and "Category 3":
We have the right to disagree with Mr. Halker. Simply because he has made a claim to the words “Category 1” and “Category 3” does not make it axiomatic. Mr. Halker also completely ignores the other beer manufacturers using the Saffir-Simpson Hurricane Wind Scale categories, but chooses to pick his fight with Big Storm. Big Storm respects the rights of craft breweries and their respective intellectual property. Big Storm has never been involved in any litigation, and we hope to not to be involved in any in the future.Generally, the purpose of a trademark has two functions: to help avoid confusion between two similar products and to protect the reputation of the producer.
U.S. Supreme Court Justice Stephen Breyer summed up the purpose for having a trademark in the 1995 case of Qualitex Co. v. Jacobson Products Co.:
"In principle, trademark law, by preventing others from copying a source-identifying mark, "reduce[s] the customer's costs of shopping and making purchasing decisions," for it quickly and easily assures a potential customer that this item - the item with this mark - is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past. At the same time, the law helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product."Most brewers in Florida should know about Due South's Category 3 and 5 IPAs by now, Halker says. Due South covers most of the state except for a portion that runs along the west coast of the state from Tampa to Naples. In fact, Halker says he's received several calls from people in that part of the state who brought the issue to his attention.
Even though Halker says Big Storm refuses to change its beer label, he's not going to let it bother him — for now, at least. Halker would rather just focus on the beer instead of getting entangled in a court case, even though he says he's got a "huge leg to stand on" if he decides to push the issue.
"For now, we're going to take the high road," Halker says. "It's unfortunate that there's folks in this business that do things like that, but I would much rather put my time into making good beer and improving our processes and taking care of our people than getting caught up in litigation involving a beer name."