RANT WARNING: Our daughter dropped into a small Washington brewery last weekend. She texted me and asked if I knew about it. I didn’t know much, so I went to their website. Seeing their logo, I instantly found a Problem: it was almost a direct, point-for-point reproduction of the logo of a large East Coast brewery. As they’re not in a large urban area, I assumed it was a simple mistake and sent the owner an email, explaining the situation. I was even nice about it.
The response: A ton of whining about how hard it is to run a brewery and how he has a family to feed and how I appeared to enjoy “wasting people’s time”…
Here’s the thing: If you “borrow” another business’ brand or creative product, it is no less a serious problem than if you bought a keg of their beer, bottled it, and put your name on it. It is no less theft than slipping into their loading dock and lifting a couple of cases of beer. The man who owns the Eastern brewery is one of craft brewing’s genuine Nice Guys and it’s entirely possible he wouldn’t even object to this infringement but that is HIS decision, not the small brewer goofball’s.
Maker’s Mark sued Jose Cuervo over its use of red wax(!)…and won.
Copyright/trademark infringement is one of the most casually misunderstood and whined about legalities in all of business. A Washington brewer, a few years back, named their brewery “Drop Anchor” and then were shocked when Anchor Brewing sent them a Cease and Desist letter. A Colorado Springs brewery named their Belgian Dark ale “La Merle”, without bothering to even walk into THE CLOSEST grocery store to their brewery and look at the shelves…where I found North Coast “La Merle” – which has been produced for over a decade – sitting right there. The owner also didn’t bother to google the name and then spent about six weeks bitching and moaning online about how he was being victimized by “Big Beer”.
Oy vey…
The technical term for this is a long Latin word: Stupidity. YES, emphatically, there are FAR too many instances of large companies siccing gangs of flesh-eating lawyers, without much that would ultimately stand up in court, onto smaller companies that just got a little too close to their brand. Much of it is total bullshit, of course, but the strategy is simple: the large company bets that the smaller one can’t handle the financial burden of fighting for its rights; the legal fees and time lost and replacing printed materials and signage…and products. They’re betting that the little guy will run out of money before the issue even comes to trial. And, about 90% of the time, they’re right.
Right or wrong, the smaller party is at the mercy of the court and, if the judge decides that you’re being a stupid, oblivious (or, worse, arrogant) asshole, it IS within his/her authority to levy brutal financial penalties of the sort which could cripple or even finish a small business.
I am on the side of the small businessperson at least 95% of the time, as you can see in this post from my old blog at seattlepi.com, written in December of 2012. That post approaches the issue from the side of the defendant. But the side of the plaintiff does, occasionally, have some ethical and legal justification behind it. In short, if your attitude is like this brewer’s, “If you choose to waste people’s time that’s fine. I own and operate a small brewpub by myself. I work too much. Respond to too many e-mails. All while attempting to support my family so my wife doesn’t have to work so she can raise our 8 month old daughter. Copying someone’s work is the last thing on my mind”, you’d better not try using that excuse on the court or the other side’s attorneys or you will get a lesson you could have avoided easily.
I promised I wouldn’t rat out the guy who runs this brewery and I’m not going to. But if ONE person who lives near the East Coast brewery and is a fan of theirs sees the logo, they probably will go straight back to that company and tell them that someone back in the Pacific Northwest is using their trademarked materials. Even a fan out here might do it. That Eastern outfit is distributed – and admired – nationwide. And then Mr. Potato Head, out here in the boonies, will have Trouble, right here in Podunk City, with a capital T, which rhymes with B, which stands for Beer.
Titleist Golf saw nothing funny about this spoof ball cap.
If you own a business – and if you happen to read the Seattle P-I post, you’ll see that this is not just a problem at breweries but at wineries and distilleries, too – defining a visual, legal, and marketplace buffer around your name and products is Job One, every bit as vital to the success of your business as whether or not your beer is any good, your wine is potable, and your whiskey really IS an authentic American Bourbon. To use a particularly apt analogy, which many business owners routinely use to express their feelings about their work: “There’s so much of me in this business” If that’s so, your brand and your logos and name are the face of that version of “you”…so, imagine how your life would be if your face was stolen and used by someone else.
You will read and hear that craft brewing is running out of names, for breweries and for individual beers. Put simply, this is Bullshit; a little “sky is falling” lament sounded by people who lack the ability to Think Outside their own narrow Box. There are tens of thousands of viable names still left, just as there are many more thousands of usable images. Mr. Potato Head claimed that he used a local artist to design “his” logo. If that’s the case, the blame is not shared but doubled. The artist had an ironclad obligation to check for similarities – and this logo copies the shape, typeface, layout, and even the small decorative flourishes along the sides – before sending his/her design to the client. And then, the brewery owner had his own ironclad, LEGAL obligation to keep his and his family’s financial future out of the path of locomotives that are already racing along that same track.
The band, Iron Maiden, is currently suing a game manufacturer, which figures.
BE SMART. Google names. Check with the USPTO (the US Patent & Trademark Office), at this link, to get official confirmation that your proposed design is clear of conflicts. DO NOT rely on your perception of your craft brewing, boutique winery, or artisan distillery culture as some enlightened convocation of kindred spirits who will forgive and allow anything. That’s an ancient counter-culture fantasy, not the quotidian reality of 2019.
AND, most of all, DON’T think that you’re so small and obscure and out of the mainstream that the company whose image you copy will never find out about it. This is the age of instant communication. The world is MUCH smaller than it used to be and you surrendered the assumption of any professional privacy when you got that business license. (You do have a business license, right?) All it’s going to take is a fresh idea, a google search, and maybe a day or so asking questions of the feds or your current attorney to keep your business out of harm’s way…and if that seems like too much to ask…what are you doing in business, in the first place?
The Pour Fool 