a certain fort collins brewery is sending me threatening letters because we both brew a 90 shilling ale. Theirs is evidently just "90 shilling," while mine is "Jack's 90 schilling scottish ale." They claim to have a national trademark on "90 shilling."
in my opinion, this would be like trying to trademark porter, ale, ipa or hefeweizen. these are beer styles, not names.
we also do not sell our 90 shilling beer in the same markets. their owner said they are "thinking about" selling beer in montana. i always thought trademarks were meant to protect against confusion in the market place. seeing as we do not share a market, i cannot understand where the confusion is. i dont get what damages they think they are suffering because of me.
anyone else have this happen? do you know if you can challenge the validity of a trade mark?
a certain fort collins brewery is sending me threatening letters because we both brew a 90 shilling ale. Theirs is evidently just "90 shilling," while mine is "Jack's 90 schilling scottish ale." They claim to have a national trademark on "90 shilling."
in my opinion, this would be like trying to trademark porter, ale, ipa or hefeweizen. these are beer styles, not names.
we also do not sell our 90 shilling beer in the same markets. their owner said they are "thinking about" selling beer in montana. i always thought trademarks were meant to protect against confusion in the market place. seeing as we do not share a market, i cannot understand where the confusion is. i dont get what damages they think they are suffering because of me.
anyone else have this happen? do you know if you can challenge the validity of a trade mark?
cheers,
sam
Hi Sam
I know Anchor trademarked "Anchor Steam Beer" but I am of the opinion that if you name a beer with a unique moniker and include the name of that beer style, you'd probably be safe in the trademark arena. I came across four other label approvals in COLAs online with 90 shilling in the name. I wonder if this brewery is "thinking" of selling beer in those markets also.
Dear god...I hope not...
though maybe it really doesn't matter anyway since so many 'styles' seem a tad bogus anyway.
I will rant now. Bear with me (or scroll past it), thanks...
Actually, I always thought it pretty amazing that Anchor was able to trademark the historically used term "Steam Beer", even if they were the only ones using the term at the time. It seems that now they are the only ones who can use it (commercially anyway). Astounding. The defense must have presented quite a dog-and-pony-show.
In any case, there's always a way around it in the unlikely event that a beer 'style' can be trademarked by doing what brewers have been doing since the micro revolution began: just make up a new 'style' (or a different name for an old one...it goes on, and on...).
Which illustrates that the whole 'style' thing means less and less anymore, to the point of being almost annoying. Far too much emphasis on it, especially among the homebrew community (though I suppose it makes competitions more fun-- not to mention generating more contest entry money for the organizations that govern such things!).
As far as the consumer segment, the 'styles' thing seems more confusing than helpful. (If like me, you've sat in a pub overhearing a beer nerd saying that Sierra Nevada Stout was not "to style", you'll probably agree. Hopefully, not with the beer nerd).
Besides, really...just about every 'style' is just a subset of another 'style' (especially in the last 25-30 years or so when the fad began). It has really become something of a joke among many beer lovers. Indeed, it is beginning to be perceived as more of a marketing gimmick than any reflection of historical or even sensory significance.
Opinions will vary, I'm sure. But that's my take on it.
"Styles" be damned. I just try to make good beers that, as has been the case traditionally for centuries, represent an individual brewer's take on many traditions. And further, I hereby pledge that I will flatly refuse to give the name "Imperial" to anything I make, regardless of the octane.
With that, let's all toast and raise a glass of genuine 'Traditional Boise Imperial Triple California Common Abbey Amber Lambic Shankbier'.
(...should I trademark that?)
I have to wonder what would happen if you just told them to shove it.
Their attorney calls with some veiled threats, some chest pounding...then what. Would a judge really rule in their favor?
Has anyone on this forum fought this type of crap before.
The Vermonster/Monster thing never made it to court, so who knows how that would have really ended.
In the meantime, I'm going to the copyright office tomorrow and trademark the words
"Lawyer" and "Attorney"!
Ok - the "90 Shilling" trademark thing. First, any time someone throws the "I've got that trademarked..." thing at you go to http://tess2.uspto.gov/ and click on the "New User Search Form (Basic)" button and search to see if they actually do. You're looking for a registration that is listed "LIVE".
Turns out that Odell Brewing Company trademarked "90 Shilling" in 1998 and renewed it in 2008. Here's the problem - the trademark examiners are supposed to be experienced in the various fields but can often screw up their research and issue a trademark that is way too broad. If they're just phoning it in they'll do a quick search (in '98 the search capabilities weren't like Googling is today) and then "Publish for Opposition" and if no one says anything in opposition Anchor and Odell get trademarks issued.
Now, its not as simple for those guys to just get the mark - they need to use it and prevent others from using it. By the way - that's what the Monster/Vermonster thing was about - lawyers making a show of protecting their mark so that no one can claim down the road that they abandoned it. I seriously seriously doubt that Monster ever had any interest in filing a suit but they needed to be protective so they sent the "knock it off" letter, which always consists of attorneys trying to look tough and all that.
Anyway, there's a possibility that their mark is unenforceable because its so broad and there's a possibility that because they're not distributing in your area that it may not be enforceable for territorial reasons (the law, in a rare spasm of logic, tends to discourage idle intellectual property rights and allow commerce and whatnot to move forward in the absence of an actual enforced intellectual property right, like a trademark). And there's also a possibility that your name is sufficiently different so as to be non infringing. In the meantime, your real-world best course of action is (as much as it pains me to say it) to get a lawyer who does IP work and isn't a buffoon.
Because they actually have the name trademarked you should be careful about stepping on those toes before some sort of finding that its unenforceable. If the mark is enforceable but you're not directly competing most of the time these things get resolved by licensing the name from the mark holder. There's a possibility they would license it to you for a dollar or something, just to make them secure that they're laying a record of protecting their mark.
Good luck. I've spend more years than I care to count doing IP litigation which is why I now make beer. Chances are good that you'll be able to work something out. There's a good chance that they don't think their mark would stand up to scrutiny if they sued someone on it and they won't want to sue someone and have it backfire in losing their mark. You can also try and get a meeting with one of the non-legal people at Odell and talk it out. Once the lawyers get involved and take on the negotiations everything generally gets screwed up and everyone loses buckets of money except the lawyers.
Oh - by the way - you're right on the damages thing. The measure of damages, absent some evidence of really nasty conduct, is the losses suffered from confusion of the two products. Meaning, the amount of your beer that a consumer bought thinking it was theirs. As they don't distribute near you - they have no damages even if you're found infringing. Finally, track down the records of the first time you used the name in commerce and keep those handy.
Seems daft to me - it is a style & therefore shouldn't be trademarkable
(is that even a word?)
I take it you know that the shorthand for Shilling in Britain is "/-"
As in the classic "Caledonian 80/-" http://www.caledonian-brewery.co.uk/80_home.html
although, ironically they seem to have dropped the shilling bit altogether
("we have had requests for "Caledonian slash dash")
Could you use & trademark "90/-" (& then never sue anyone over it!)
There's a possibility they would license it to you for a dollar or something, just to make them secure that they're laying a record of protecting their mark.
Gordie
GREAT info Gordie!
Funny you mention the dollar thing. We were making a seasonal beer, for sale by the pint or growler ONLY in our northwestern Montana tasting room for a part of the year. Ironically, the style was also a scottish ale (damn Scotts!). I hung what I thought was a neat and original name on it; having to do with a certain patron saint of hop pickers/brewers. We got a phone call (after using it for one year) from a Texas brewery that went by the same name of this saint. They asked for one dollar a year in "licensing" fees so we could use it. No problem. This continued for another year. Thought it was very cool of them to not immediately send the "cease and desist" letter. The next year rolls around and we get....wait for it.....the cease and desist letter. So, we did. Funny thing is, this brewery STILL hasn't even approached our market with their products. They're still half-a-country away!
Well, I brewed the seasonal Scottish again, but I don't have a name for it. The working title is "Scottish Bastard". I suppose I should be bracing for a letter from Stone Brewing now.
Prost!
Dave
p.s. funny, when I was starting my brewery, I naively never thought I'd have to be well-versed in trademark law!
If Scottish Bastard is already in use, try Texas Bastard?
Beware that licensing for a year declares that you agree they have control over the name in your area. This would only work for you if the contract stipulates a dollar a year for a certain number of years, like 99 or so.
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