As you’ve no doubt heard, the Swiss Austrian energy drink company and extreme sports patron Red Bull filed a complaint with the US Patent and Trademark Office against Ashburn’s Old Ox Brewery, alleging that two brands whose images include animals from the same biological subfamily – bovinae, in this instance – could lead to consumer confusion. Under this rationale, Wilkes-Barre, PA’s Lion Brewery, maker of Lionshead, and Singapore’s Tiger Beer would be in conflict with each other as both fall under the subfamily pantherinae.
Red Bull’s lawyers, it seems, are concerned that unwitting customers seeking a can of caffeine- and taurine-infused beverage might inadvertently purchase a bottle of beer. The encounter would presumably sound something like this:
Patron: Excuse me, may I please have a bovine-themed liquid?
Bartender: Of course, here you are.
Patron: Is this a glass of beer?
Bartender: Why yes, it’s an Old Ox porter, just as you requested.
Patron: But I wanted a Red Bull Wild Cherry! I’ve been hoodwinked!
I’m not a trademark lawyer, but there are obvious flaws with Red Bull’s case. The branding is entirely different – Old Ox doesn’t even use an animal in its marketing materials. Old Ox is a 30 barrel brewery distributing exclusively in select markets in Virginia, while Red Bull is the largest energy drink maker in the world, with over five billion cans sold in 2013. It is unlikely that a consumer would refer to the taxonomic subfamily of a drink’s mascot’s rather than the actual printed (and trademarked) name of the beverage itself. A cursory Google search will yield many more holes poked in Red Bull’s argument, often from commenters with a deeper knowledge of trademark law.
The apparent frivolousness of this case, as well as Old Ox founder Chris Burns’ pithy open letter to his litigious corporate adversaries, has earned the brewery a groundswell of support from beer-drinkers and teetotalers alike. See, for instance, the #redbully hashtag. There’s been no word as of yet about Red Bull’s response, but given the traction that the battle is getting with bigger media outlets, don’t expect Old Ox to concede to Red Bull’s demands quite yet.
This is just one of the many recent cases of intellectual property (“IP”) defense in the craft beer world. Remember, it was just a few short weeks ago that Lagunitas filed and then dropped a trademark suit over Sierra Nevada’s graphic depiction of the letters ‘IPA’ on new labels. In that instance, there might have been some legal grounds for the complaint – we won’t get into the complexities of kerning here – but the case was dropped before a ruling could be issued, largely based on the negative public response. Good Beer Hunting published a thoughtful take on the suit, encompassing issues of real versus perceived authenticity, consumers’ emotional investment in brands, and the implications of viewing craft beer as a traditional business.
In the end, the public spoke, and Lagunitas was wise to listen. But not all defenses of IP are trivial. In late 2013, DC Brau issued a Cease and Desist letter to Silver Spring’s Citizens (now Denizens) Brewing Company, alleging that customers might confuse “Citizens” with Brau’s own Belgian pale ale of the same name. In this instance, the breweries would be competing in the same marketplace, so a conflict was possible. And, as Jacob Berg wrote back then, brewers must defend their trademarks or risk losing them. It was a gut-wrenching experience for both sides, but thankfully, it worked out in the end. DC Brau retained its right to the name “Citizen” as it related to beer, while the brewery rebranded itself Denizens and has gone on to much success. Hopefully, the more recent dispute between New Belgium and Oasis over the name “Slow Ride” will have an equally positive result.
The Old Ox-Red Bull dustup won’t be the last of its kind. As NPR’s The Salt detailed, breweries have faced myriad trademark disputes in recent years, both within craft beer and from related industries like wine, and the field continues to grow. The Brewers Association puts the number of American breweries at over 3,000, each, presumably, with its own array of brands and trademarks to defend. It’s inevitable that two different breweries will attempt to use the same image, the same font, or the same hop-pun, intentionally or not, at some point.
There are different approaches to avoiding trademark issues. Some breweries attempt to avoid duplicative branding by releasing beers with esoteric names referencing Kurt Vonnegut or a free jazz pioneer. Some opt for generic names that aren’t subject to protection or base beer names on their local monuments or geography. Some go lowbrow. But as beer flows and flows, there will only be more conflict.
Breweries will have to think long and hard about the parameters and impact of a potential IP battle before deciding on a course of action. Issues like intent, consumer knowledge, market overlap, potential bad publicity, and personal relationships with their brewing peers will come into play. But how should we as consumers feel about this?
First and foremost, we should hear Jake Berg’s words echoing in our ears: when it comes to trademarks, it’s “use it or lose it.” We should never fault a brewery for taking action when there’s a clear (or at least widely-viewed-as-plausible) infringement on any intellectual property that they wisely chose to protect. Breweries spend an enormous amount of effort and money to build their brands because, let’s be honest, it’s far easier to distinguish between Beer A and Beer B based on our feelings about the company than the subtle differences in their hopping rates. As Michael Kiser wrote in his aforementioned Lagunitas piece, for craft beer in particular, “a purchase is seen as a political statement,” a vote cast. So if there’s a chance that a brewery might have its right to define itself impeded or stripped away, they should by all means act.
If a brewery does decide to act, how they proceed matters. Despite its growth, craft beer is both a small world and a network of highly interconnected individuals committed to a common cause. I’d wager that between any two American craft breweries, there are no more than three or four degrees of separation. Many of us choose craft beer for reasons beyond taste – although that’s a huge part of it – not the least of which is the sense of direct contact with the person who made your beer. While not every case can result as amicably as the Avery-Russian River dispute-turned-collaboration, things can sometimes be resolved with a simple phone call. After all, law is much more lucrative than brewing. Any brewer who wanted to spend their time trademark trolling made a poor career choice.
For a brewer on the receiving end of a C&D, being asked – or told, really – to relinquish a cherished concept that he or she spent months or years cultivating must be incredibly frustrating, especially if the complaint doesn’t ‘keep it friendly.’ Tempers can get heated and there’s a temptation to lash out. After all, it’s unlikely that any similarities between the brands were the result of intentional theft. But regardless of intent, an alleged infringement of a trademark must be handled by professionals, and quickly.
When does an idea, word, or image move from something shared or generic to a unique individual’s creation of the mind? It’s almost impossible to draw bright lines, but breweries will only face more conflict, both real and imagined, as the market crowds. Just as suits brought against small, family-owned breweries by faceless corporations based on shaky evidence can unite craft beer fans, conflict between craft breweries, each with their own fans and detractors, will cause rifts. Some disputes can’t be avoided, but when they arise, let’s try to remain civil and judge each case based on its merits. After all, the faster the resolution, the sooner we can get back to the beer.
