2014 Great American Brewers Dialogue: Trademarks Summary Report

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Introduction

The Great American Brewers Dialogue gives breweries an opportunity to flush out, clarify and effectively address concerns they have with their business and the brewing industry. A dialogue format allows for open conversation among participants, speakers and OvalOptions’ facilitators to stimulate the flow and cross-pollination of ideas. It also serves as a continual information exchange, rather than a one-side lecture or presentation, where everybody offers questions and provides answers.

Each year, the week of the Great American Beer Festival is a convenient time for this Dialogue as many brewers and brewery representatives are in town at the same time.

We collaborate with local breweries to provide a safe space for private conversations, away from media and general public. Our experienced facilitators help generate topics, keep the group(s) focused, facilitate conversation, uncover hidden issues, clarify concerns and situations, keep track of ideas and sketch possible solutions.

This year, Comrade Brewing hosted the Great American Brewers Dialogue on October 1st.  We appreciate all David, Marks and the Comrade Party did for this event.  Thanks guys!

 

The Great American Brewers Dialogue is a project stemming from our Pub Dialogues series. Whereas the GABD is exclusive to breweries, each Pub Dialogues is a public event held at local breweries/brewpubs to gather people to talk about pressing issues in their community, the nation and the world. We want people to stay offline, and get away from vitriolic chat rooms, message boards, comment threads and impersonal “communication”. In-person information exchange is the best way to understand, clarify and solve problems. We wanted to transfer this notion to the brewing industry.

 

The Dialogue

The Dialogue neither promised nor gave legal advice or counsel. Only legal information was offered.  Nor does this summary provide, or seek to provide, legal advice or counsel.

This year’s event differed from the 2013 GABD in several ways.

2013 GABD

2014 GABD

No pre-arranged topic

One topic: Trademarks

Participants produced topics for conversation

Topic set by OvalOptions

Multiple Locations ensured diverse topics:
Prost Brewing

Strange Brewing

Vine Street Pub

One location focused upon the complex topic:

Comrade Brewing

Facilitation heavy

Free-flowing dialogue

No guest speakers

5 guest speakers

 

We decided to focus on one topic: Trademarks in the brewing industry.  We had heard of trademark disputes getting out of hand, costing vast sums of money, demanding hundreds of hours of attention from breweries, affecting public image and causing much distress. On top of that, many solutions have been unsatisfactory and do not address periphery concerns. Upon researching this, we discovered that Trademark, as a property and process, is vague to many in the brewing industry, in large part due to its complexities. An industry made up of thousands of small businesses across the country complicates this already challenging issue.

Therefore, our perspective of Trademarks in the brewing industry is something like this:

  • Brewers believe that trademarks are necessary
  • Just how necessary is vague at best
  • Applying for a trademark is a complex and time-consuming headache
  • Trademark protection is an unwelcome, cost-heavy surprise
  • The specter of trademark lawsuit is ever-present and promises costly damages
  • Going without a trademark is favored by local, non-packaging breweries
  • The only way to fight a trademark or infringement is through expensive legal avenues
  • Most breweries just want to make beer and sell it locally; trademarks are for big businesses

So, heading into this Dialogue, we saw that Trademark presented a web of challenges to breweries; a Pandora’s Box that must be opened.  Since the intricacies of trademarks are difficult to understand, we wanted this weariness addressed soon and often.  However, we are not experts in trademark law. To remedy this, we invited Candace Moon, a non-litigation trademark attorney from San Diego. Her focus is on trademarks in the brewing industry. Essentially, she is an expert in trademark law and its role in craft brewing.  As the Dialogue rolled on, she did not disappoint and hit the proverbial home run.

With Candace going over some basic rules of Trademark, we invited participants to ask questions continuously (outline/agenda below), instead of OvalOptions facilitators placing questions in a “parking lot” to be addressed all at once later (a common facilitator method).  We saw more benefit in clarifying certain aspects on the spot, instead of continuing a discussion when some participants were unsure or confused.

To add personal accounts and experiences to the Trademark process, we invited brewers/brewery managers to speak about their experiences with Trademarks. This enabled everyone to hear how real Trademark disputes play out. As it turned out, most of these were relative horror stories to breweries: costly and time-consuming legal struggles, sleepless nights, demands that threatened the respective brewery, etc.  However, this served as a wakeup call to take trademarks seriously, and the dialogue process offered participants an opportunity to ask specific questions to those who had firsthand experience.  This alleviated a few apprehensions and brought forth some important information from Candace.

Our sincere thanks to the guest speakers:

  • Tim Myers;  Strange Craft Beer Company
  • Will McCameron; Brewery 85
  • Kevin Selvy; Crazy Mountain Brewing
  • Scott Newman-Bale, Shorts Brewing (couldn’t attend)

 Venue

Since Comrade Brewing opened in April of 2014, we thought it would be nice to allow for brewery tours before the Dialogue commenced. Marks Lanham was accommodating with this and gave tours from 10am to 10:30am. We seated participants and commenced with introductions at 10:35am.  David Lin provided doughnuts for a quick breakfast.

(Congratulations to Comrade for winning a Silver Medal for their Superdamp IPA!

Process

We began with introductions. Myself first, then Candace and thanked participants for coming and Comrade for hosting.   The initial plan of action was to cede the floor to the guest speakers, then move to a questioning session. We knew participants were coming with concerns and prepared questions, and we wanted them to feel free to ask.

We also anticipated new questions as the Dialogue progressed—the more we spoke, the more questions would arise.  This is common amid dialogues, which is one reason dialogues are so valuable. So, we altered the format slightly and allowed for a continuous Question and Answer.

Content

This ongoing Q/A produced interesting and wide ranging questions directed at the speakers, Candace and OvalOptions.  Such information is contextual and to convey it in this summary would require too much background data. We decided that this information would be better offered in another format at a later date; possible a guidebook.  Stayed tuned for more information later.

For now, here are samples of what the Dialogue covered:

Concerns

  • Uncertainty of TM, TM processes, TM blowback
  • Unsure of where, how to find resources
  • Control of process, cede control to litigators
  • Time consumption, time away from brewing aspect of business
  • Stress, loss of sleep, effect on family
  • TM effects on business, image, future and individuals
  • Loss of creative mark
  • Personal attachment to brewery (life’s work, dream, etc.) minimized or threatened
  • TM and TM policing costs
  • Interstate commerce and TMs; beer fests and competitions
  • TMs in various industries/crossover to brewing
  • Distribution contracts
  • Neighbors, community, business relations
  • Co-owners of a trademark, but different businesses

Suggestions

  • Trademarks are a good idea, and can be a business necessity
  • Always think down the line. Twenty years later, do you want to package/distribute?
  • Search names: Google, BeerAdvocate, Rate Beer, Untappd
    • Do not limit search to beer
    • Include wine/spirits
    • Search the unique term you want
    • Know your rights and TM rights
      • Intent to use/In-use mark
      • Interstate commerce
      • Fairs, festivals, trade shows
      • Contact a TM attorney for information (not necessarily representation)
      • If there is any concern about confusion, act on it in a non-aggressive progressive sequence
        • Call the other brewery
        • Write a letter (get any agreement in writing)
        • Contact mediator (mediator can contact other party)
        • Contact TM attorney for possible litigation scenario
        • A Cease and Desist letter can escalate the process and elicit aggressive defense from the beginning
          • Any letter from an attorney can be worrisome
          • Attorneys may use it as persuasion
    • “laywering up” can have two meanings
      • Seeking legal information
      • Seeking legal representation
      • Don’t burn bridges that are yet to be built
        • You don’t need to come out “guns a-blazing”
        • Chances are the other brewery is just as concerned
        • Reframe from accusations (e.g. “you stole my idea!”)
        • Trademark and Copyright are distinct marks
        • Sometimes it is better to settle (change name, logo, etc)
        • Trademarks belong to a business, not individual
          • Dual ownership
          • Sale of business

Conclusion

It is clear that Trademarks and their defense can accrue large sums of money, consume valuable time from breweries and cause sleepless nights. Currently, the fallback or default remedy to Trademark issues is through legal channels, which in some cases is necessary. Yet a vast majority need not proceed directly to this default action. Trademarks are scary and complex, and this drives reactions to them down expensive and painful pathways.  These pathways remove control of the situation and processes from the brewery; this raises many more concerns among breweries.

While there were many more concerns and suggestions, the above give a good taste of what the participants gained in this Dialogue from each other, our guest speakers, Candace and OvalOptions.

Our assessment of this Dialogue includes a concern in the lack of information the brewing community has in respect to Trademarks. While accurate and valuable information is out there and available, it seems to be hidden or requires more awareness. Ultimately, we would like to ensure that brewers and breweries have the information that they need to succeed within the brewing industry.

We strive to increase the amount and integrity of information the brewing community has in respect to Trademarks in order to reduce the damages that can arise from it.  We are working to ensure that brewers and breweries have the tools that they need to move their business forward efficiently and effectively.

What’s Next

¾    We have submitted a seminar proposal to the Brewers Association for the 2015 Craft Brewers Conference in Portland, OR. Finalization of seminars and schedules will be released by the BA closer to the New Year

  • If our proposal is not accepted, we anticipate securing a venue in Portland to host a similar dialogue
  • We may release a more inclusive guidebook on trademarks in the brewing industry
  •  There are plans to connect the brewing industry to mediation and other dispute resolution processes more conveniently
  • Stay tuned for future programs, seminars, dialogues and events from OvalOptions

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