On July 15, Due South Brewing Company in Boynton Beach sent a cease-and-desist letter alleging trademark infringement for Tampa-area Big Storm Brewing's use of the name "category" in a series of its beers. But Big Storm CEO Jonathan Golden disagrees because he says the term is fair use and taken from the Saffir-Simpson Hurricane Wind Scale — a system used by the federal government to rate the strength of hurricanes.
Not only that, Golden adds, but the beers are different. Big Storm's are Belgian and seasonal, as opposed to Due South's flagships of Category 3-5 IPA.
"There's a point where the beers are distinguishable," Golden told the New Times. "The overreaching idea is that no one owns these names."
Additionally, Big Storm is not the only brewery to use the "category" label, as indicated in its July 22 letter responding to Due South's claim.
At least two other breweries in different states use the Saffir-Simpson term for their beers. Heavy Seas Brewery in Maryland makes a seasonal Winter Storm Category 5 Ale, and Holy City Brewing in Charleston brews a Category 3 and 4 IPA — the latter of which bears a striking resemblance to Due South's line of IPAs.
But that's not the point, Due South owner Mike Halker says. He claims what it's really about is distribution. Halker says he's called the other breweries and worked it out with them. He describes as a "simple" conversation with Holy City, which hails from his home state of South Carolina.
"If someone is using, let's say, the Category 5 name in Maryland, we don't distribute to Maryland, so it's not a big deal to us," Halker says.
Currently, Due South's beer isn't distributed in all parts of Florida. Halker, however, says he has plans to begin distribution to the section of the coast between Tampa and Fort Myers soon and doesn't want anyone confusing Due South's beers with Big Storm's.
Golden insists the risk of such confusion is low. The name came about when Big Storm developed a seasonal series of five Belgian brews. Golden thought it'd be fitting to add all five hurricane ratings to their labels. The series is mostly confined to his brewery's taproom, he says, except for the Belgian Single Category 1, which has made it into a grand total of three accounts.
In the taproom, the beers are typically referred as simple "Belgians," Golden says, and adds that the "category" word is barely visible.
After spending 30 years as an attorney in the cutthroat world of corporate law, Golden says he has developed a "very healthy respect" for craft breweries and enjoys being a part of the brotherhood of brewers. However, he also believes Halker is picking a fight with Big Storm and was hoping to not put his "lawyer hat" on.
"There is some excellent camaraderie," Golden says, "but when it come to the word 'business,' I expect everyone to protect their intellectual property."
Still, Golden insists in this case, fair use applies.
Halker hasn't entirely ruled out litigation. Even if the disputed labels are fair use, as Golden contends, Halker believes "common sense" should prevail.
"Just because you're allowed to, it doesn't make it right," Halker says.
If there's one thing both brewers agree on, it's to continue making the beers their fans enjoy. For now, it's simply a battle of words.
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