The trademark and copyright laws of the United States were, unquestionably, a wonderful idea and a great means for enterprising business people who have labored to build and nurture a brand to make sure that peanut butter, that 3/8″ reversing drill, that SUV, or that bottle of beer is allowed to compete on its own merits, free from blatant encroachment.
That was the idea. As with so many concepts, the thinking behind it is pristine. But also as with most great ideas – politics, Communism, religion, etc. – when human beings got involved, the whole thing went to hell.
I’m angry about this. I’m not even going to make a pretense of some sort of BS “journalistic objectivity”. I quit being a journalist eighteen years ago because I didn’t like the phony little apron strings that “legitimate” journalists cower behind when accused of practically anything. I think, if you’re going to put forth opinions in a public forum, you don’t get to live in an ivory tower. You had better be ready to own what you write and ready to defend what you say to anyone who offers a PLAUSIBLE – key word, PLAUSIBLE – rebuttal or counter-argument.
My pal, Raghav Kher, owned a website called LetsPour.com. There is also a website called LetsPout.com. “R” and “T” on your keyboard are right next to each other. I frequently typo myself into LetsPout. Raghav did not C&D LetsPout. Why? Raghav is not a D-bag. He gives the public credit for being able to distinguish between a website featuring pictures of girls making that duck face and one that sells beverages. He didn’t sue them – even though they constituted a clear infringement upon LetsPour – because he doesn’t think people are stupid. That’s the difference between him and hundreds of other complainants, and we will, here, make an exception for those instances in which the similarities are as clear as LetsPour/LetsPout. Those are precisely the situations the laws were INTENDED to remedy.
Which dovetails nicely into what I’m about to write.
Over the past five years, and intermittently for the twenty before that, I’ve watched an increasingly irrational series of trademark “infringement” proceedings pop up, NONE of which would survive any sort of objective BS test. No “reasonable person” – the other smokescreen behind which the people who bring these suits hide and bluster – would possibly suffer the profound confusion that the accusers in these things seem so convinced would irreparably damage their businesses. What I’m about to tell you is the barest bones of these conflicts, without any of the finer points and backstory of each case. I don’t claim any insider knowledge. My interest in them is that of an admittedly biased observer who cares FAR more about the interests of small businesses and the continued growth of same as the ONLY rational way the US is ever going to regenerate a viable, sustainable economy. On a personal level, I just don’t like people or businesses who resort to legal means to resolve ephemeral business conflicts. As in the case of my friend Raghav above, I believe you pick your battles VERY carefully. Karma is a mean ol’ thing and she will come back to bite those who tweak her too often and too casually…
(I apologize ahead of time: I usually toss in some graphics, just to break up the page a bit and provide eye relief. But what graphics do you attach to “trademark infringement”? I did the best with what the subject allows.)
Case #1: Magic Hat Brewing vs. Georgetown Brewing: The Facts: Georgetown Brewing of Seattle creates an ale called “9 Pound Porter”, named for a famous bar in Seattle’s historic Georgetown district…they receive a Cease & Desist order from the folks at North American Breweries, the “independent” brewing conglomerate which acquired Magic Hat Brewing of Vermont – a brand which, at the time, had never been distributed in Washington state – and which owns a dozen or so other brands of beer, mostly the same sort of fizzy yellow stuff that owes a lot more to the BudMillerCoorsPabst school of wimpy mass-consumption brewing than anything resembling Craft Beer. Magic Hat contends that Georgetown’s beer – distributed only in draft form, only in a limited area of the Northwest -constitutes a conflict and a source of potential market confusion with Magic Hat’s #9.
My Take: Magic Hat markets #9 using the line “There’s never been anything quite like #9!” I tried #9 in Washington, DC, several years ago, and my exact reaction was “Meh“. Not only are there other beers quite a lot like #9, there are a LOT of beers like #9. Magic Hat can claim anything they like. It’s a free country. But one trip across the taste buds of any discerning craft brew fan will knock that claim silly within two seconds. RateBeer.com assigns this ale a 48-point score. BeerAdvocate.com is a bit kinder, awarding it a 74, or what they classify as “average”. Since these scores are generated by user content, this is not the disgruntled musings of effete critics. This is consumer reaction. But the salient fact is that Magic Hat wasn’t distributed in the Northwest and Georgetown is not distributed outside the Northwest.
Other “Conflicts”: Those Who Did Not Receive a Cease & Desist: Arbor Brewing Engine #9, Archers Brewing Force 9, Angel’s Share #9 Copper, Almanac Sour Barrel #9, or any one of the FIVE HUNDRED+ ales, that a quick search on RateBeer.com reveals, which prominently feature “9” in their names. My first reaction was, of course, “Look out Sesame Street!!” Apparently, North American Breweries fervently believes they own the number 9. Georgetown’s beer was named in honor of an historic bar just down the street from the brewery. It was not widely distributed and has never been packaged. Curious that NAB didn’t also C&D the bar…oh, wait. They couldn’t. Nine Pound Hammer was in existence before Magic Hat.
Case #2: Ravenswood Wines vs. Black Raven Brewing: The Facts: Joel Peterson, owner of Ravenswood, that California winery that churns out the billion or so cases of Vintners Blend supermarket wine, C&Ded tiny, local Black Raven of Redmond, WA, because they dared to use a black bird, presumably a raven, in their logo. Peterson, hunkered down there in California, where Black Raven is NOT distributed, somehow found out – probably when BR started to win a few high-profile beer awards – about the brewery. A C&D arrives, enjoining BR from using the raven in its images. Hi-jinks ensue.
My Take: Peterson has been known in California wine circles for years as a smiley, jolly Good Ol’ Boy and reportedly cherishes the image. Y’know, Good Ol’ Joel! With his capering ravens! I opined, in a public forum, that taking on some small, local brewery in Washington didn’t seem much like the actions of a Good Ol’ Boy but a Bad Ol’ Yutz. The same day, I have email from Joel Peterson, at first attempting to jolly me off the viewpoint and then – when I repeated that you can either be a good ol’ boy and allow a brewery in Washington use their bird, which in NO reasonable way creates confusion between a tap-only range of beers sold only in this area and a stylized Circle of Ravens printed upon supermarket wines OR, you can be a greedy, fence-building jackass – got all wounded and then hot about it. You cannot pull off both the Good Ol’ Joel and the Trademark Avenger, I told him. Joel then accused me of having anger issues which, of course, is the prime Psychology 101 ploy for lashing back at someone when you don’t have a rational argument. But, I’m proudly Guilty. Watching giants beat up puppies does that to me. Sometimes, whether anyone in the Northwest believes this or not, anger is the appropriate response.
Other “Conflicts”: Those Who Did Not Receive a C&D: Quinta do Noval Raven Port OR Raven’s Glenn Estate Scarlet Raven, or any one of about a dozen other wines that employ the word or image of a raven, such as Washington winery Corvidae’s “Ravenna” Riesling, which has a large and unmistakable graphic of a raven smack dab on the front of every bottle. Or Corvus (which means “raven”) Cellars of Washington that actually has a circular depiction of a raven on every bottle. Quinta do Noval, of course, has been using the raven since the 1800s. Can’t sue them. Not to mention about a hundred other depictions of ravens in our contemporary culture, including the fine John Cusack film we watched last week…”The Raven”.
Case #3: Trinchero Estates vs. Haystack Needle Wines: My pal Bob Bullock created the negociant label Haystack Needle back in 2009, naming it that for obvious reasons: finding great, unreleased wines to blend and bottle is like finding…well, you know. About a year later, when the brand was starting to gain traction, here comes a C&D from Trinchero Estates, a vast California wine conglom that makes ONE, nearly impossible-to-find Cabernet from the Haystack Vineyard – NO needle – in Napa County. Never mind that the WA label is based upon a cliche that we all use frequently and the “Haystack Vineyard” on the Trinchero bottle is written in about 7-point type and rarely ever seen in Washington, oooh, there could be some people (with the IQ of mayonnaise) who get confused! Cease! Desist! NOW!
Well, turns out, John Trinchero is not actually a grinch. Mr. T worked through a compromise with Bob that lets Bob bottle about 1,500 cases a year of Haystack Needle, original name and all. WOW! Would that people with John Trinchero’s sense of proportion and right ‘n’ wrong were the norm, rather than the scant exception. Trinchero actually had a case. It was wine vs. wine, both in the West Coast marketplace. But sanity prevailed. It would be crass of me to suggest that he could have avoided the whole thing, so I won’t, but here was a guy with an actual potential conflict and he used reason to decide what to do. Shocking…and he gained a new customer out of it: me.
Case #4: Strange HomeBrew Supply of Massachusettes vs. Strange Brewing of Denver: The Facts: The tiny craft brewer, in a small industrial backwater of Denver, which bottles nothing at all, is C&Ded by a big established homebrew supply company, all the way across the country in Massachusetts. Their contention is that Strange’s name would create confusion with consumers that would injure a homebrew supply company that makes no beer of its own and, presumably, that those who walk into Denver area restaurants and bars and order a Strange Barleywine may think it comes from Massachusetts, from a homebrew supply company.
My Take: Even if there were a conflict here, one of the most cherished traits of the American craft brewing culture is the near-universal spirit of co-operation that exists between almost all breweries, suppliers, and beer fans. There have even been beers brewed that lampooned the whole idea of breweries suing each other over infringement. “Collaboration Not Litigation” was co-brewed by Avery Brewing and Russian River Brewing in 2006, after Adam Avery and Vinnie Cilurzo found that they both had a beer named Salvation. Instead of raising the l__yer-bait of Billable Hours, Adam and Vinnie simply blended the two beers and released it under the CNL name. Instant success and a Statement, in no uncertain terms: you can cooperate and find creative solutions or a workable compromise or you can be a curmudgeon. There is no middle ground.
Strange of Mass. obviously went to great lengths to retain a Denver attorney, so there can be no mistaking their motives. A Facebook campaign popped up to show the massive displeasure that their actions engendered. It didn’t make a dent in their Denver attorney’s Teflon facade, of course, and Strange Homebrew started the whole brewhaha in the first place. But even the C&D, in the American Craft Beer Culture, is the very definition of a turd in a punchbowl. This was eventually settled, more or less, in favor of the real Denver Strange, Far from the total ban on their use of “Strange”, which the yutz in Massachusetts had originally demanded, they now call themelves “Strange Craft Beer Company”, which works just fine because everybody just called them “Strange”, anyway. This was mostly brought about by a MASSIVE internet wave of disgust with the original legal action, which pretty much ruined any chance that the MS Strange had of building their proposed beer brand. Sometimes, being the Heavy does carry some penalties.
Other “Conflicts”: Those Who Did Not Receive a C&D: Why isn’t Strange HomeBrew Supply going after the Doug & Bob MacKenzie epic, “Strange Brew”, which contains BOTH of Strange’s names, or the Ralph Fiennes-Angela Bassett sct-fi flick, “Strange Days” or the ales from Twickenham, Wye Valley, Water Street, Saxon City, Galway Bay, or Kannah Creek breweries, ALL called “Strange Brew”? Or the hundred or so other brews using “strange” that a 30-second search on RateBeer produces?
Conclusion: The crux of the matter with our trademark laws is this: hundreds of small businesses who find themselves enjoined from using a name or a symbol probably could find relief from the courts but this kind of legal pressure is nearly ALWAYS applied downwards – larger companies with budgets that include attorney fees as a line item, suing smaller companies who lack the resources to put up a fight. The complainants know they’ll never see the inside of a courtroom because it would bankrupt the little guy to fight back. There’s even a legal term for this: a “statement case”, one in which a large business or corporation enjoins a small fry in order to set a precedent, in effect using the dire financial and branding damage inflicted upon the people receiving the C&D to warn off anyone who might consider using a word or image that’s even close to their brand.
Nothing personal, kids. It’s Just Business.
Well, if someone wants to start a legal defense fund for Strange Brewing and let them fight this in court, I’ll bust out the wallet and give ’til it hurts.
In the meantime, I’m going to contact the offices of Susan del Bene, Patty Murray, and Maria Cantwell and see if it’s possible to start the ball rolling on crafting fundamental changes in our trademark laws and get this sort of court-clogging, oppressive, cheap-shot abuse of a great idea FAR more clearly defined so that honest tradespeople can work without fearing that, any any moment, some larger fish will whup up a brouhaha over some vague, perceived sorta, kinda, quasi-possible conflict. It’s too late for those mentioned above but it may not be for you, your small company, your livelihood.