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Cease-and-Desist Letters? South Florida Breweries Could Be Affected

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A situation like this arose about a year ago. Formerly known as Most Wanted Brewing, MIA Brewing changed its name due to a distillery known as High Plains in Kansas sells a vodka with the same name. Even though the High Plains owners reportedly did not have a problem, an infringing situation could occur at a later time if the owners had a change in heart or if the company changed hands.

Also, an issue over trademarks came up last year between brewing companies in Miami. One company known as Miami Beer Company sought to trademark its name but couldn't since the U.S. Patent and Trademark Office do not allow trademarks on geographically descriptive terms, like Miami. Miami Brewing Company, which is affiliated with Schnebly Redland's Winery in South Miami-Dade, tried to do register its mark as well but couldn't because of the same aforementioned reason.

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

When a company files for a trademark, they will be assigned an examining attorney from the USPTO who conducts research to see if it's similar to other registered marks or if the term is too common or if it is geographically descriptive.

Generally, a company with a geographically descriptive trademark can re-file 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 it 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 to not use that mark.

Other than Miami Brewing, several other breweries in Florida are, or were, placed on the USPTO supplemental trademark registry. They include Wynwood Brewing and Florida Beer companies. Cigar City Brewing was refused a principal registration because the term 'Cigar City' is a geographic reference to Tampa. They are currently fighting to get on the supplemental registry.

"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.

The same goes for names of products too, like any product that could be named "Miami Pale Ale" or "Wynwood Stout".

And then there is the potential issue between Miami Brewing Company and MIA Brewing, since some could see MIA as referring to Miami. However the trademark for MIA Brewing, a company that started at least a year after the former, was filed with periods in between the letters and could refer to something other than the city.

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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David Minsky is U.S. Navy veteran and Tulane graduate who has experience reporting on stories from California, South Florida, and the Deep South. He also won some journalism awards. Email or tweet David with story tips and ideas.
Contact: David Minsky

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