The recent uproar in the brewing industry involving trademarks centers on BrewDog Brewing and pub owners in Birmingham (UK) after the latter named their pub “Lone Wolf”, which is also a name on one of BrewDog’s labels. BrewDog challenged the pub’s usage and rather than fighting it in court, the pub owners decided to change the name to “The Wolf”.
Sounds like an easy solution, but the fervor escalated to a David v. Goliath altercation. The pub owners had spent money branding under “Lone Wolf” and now they had to scrap all of that and start over. The blowback to BrewDog calls them hypocrites and betraying their own modus operandi; namely not being a faceless, monolithic corporate entity that preys upon and squashes the little guys. Yet BrewDog retracted the challenge, essentially removing obstacles to the pub using “Lone Wolf”. The reasoning was that their challenge was issued by “trigger happy” lawyers, which was not met with sympathy to say the least.
But this incident highlights the various factors that make trademark a sensitive and tense subject. On the one hand, it’s such a complicated forest of issues that researching trademarked names takes time, money and expertise; something many small and new business owners do not have. On the other hand, these same complications require an established business to employ such experts to dedicate time and energy to policing their trademarks. So, one could blame BrewDog for employing a legal team; one could also blame The Wolf owners for not researching trademark database for “Lone Wolf”.
Or we can blame neither and accept that such incidents are a part of the harsh realities of business. All is not lost, though. It may be better to focus on how individuals view and address such incidents. In short, such incidents are going to happen. So, how to deal with them?
For starters, let’s evoke the phrase, “don’t hate the players, hate the game”. Realize that trademarks are notoriously tricky, confusing, and open for interpretation and, therefore, argument. Points of contention will spring up, but the key is not to automatically succumb to escalating that contention into conflict and litigation. Focus on the problem, not the person. A telephone call can do a lot; if not resolve the issue, then to open communication lines, restrict confusion and rumor, and bring personal interaction back into the fold.
What could have a phone call done within the above situation? It would not have solved the problem (i.e. one name, two products), but it could have mitigated consequences. The Wolf owners would probably not have abandoned their original branding efforts, and BrewDog would have avoided the publicity mess.
The point is that while a problem or dispute exists, there are others ways of addressing it than the usual. Lawyering up is common, and in certain cases necessary, and it comes with some baggage. An attorney’s job is to advocate for their client, not necessarily to solve problems. The default reaction to disputes, especially involving trademarks, is through litigative means. While this may be necessary, it does not have to be the first step. A cease and desist letter not only reveals a problem, it’s an escalation that usually elicits strong emotions (worry, defense, anger to name a few). It also just about promises an expensive and lengthy dispute.
There are other means to address a dispute. Mediation, facilitation and settlement conference are just a few. They aim to address problems, find solutions and mitigate or avoid damages. They can be engaged at any time during the life of a dispute, and do not automatically rule out litigative options (unless agreed to and authorized by all parties). In the end, a litigated dispute can take years, cost over $100,000 to each party, cause tremendous amounts of stress, and generate a solution that may not be satisfactory.
Or, mediation can cost $5,000, take 2 weeks, relieve stress and generate amicable solutions while maintaining positive relations between the parties. Sure, some mediation cases do not achieve agreement (89% success rate), but it is certainly worth a try.
Oh, and if you are in disagreement with another, don’t air it on social media, that just invites trouble.