The craft of choosing a trademark

The explosion of the craft beer market has drawn a lot of attention to the importance of choosing the right name. In the US there are more than 4,200 craft breweries and the number keeps growing. Across the pond in the UK the trend is similar with an estimated 1,700 craft breweries, which is an increase of 8% from 2015. To put that into perspective, in the US that equates to two breweries opening up every day, while in the UK a new brewery opens its doors every two days.

What this means, apart from customers having an incredibly wide range of hoppy drinks to choose from, is that there has been an equal explosion in the number of beer trademarks that are being registered.

In the UK, there has been a record high number of registrations, a steady increase over the last five years. In 2015, the Intellectual Property Office registered 1,666 beer trademarks, which was a 12% increase from the year before (1,485).

One of the defining characteristics of a craft beer is the catchy, funky and out of the ordinary name. Words like pony, squirrel, hog, rocket, and monk are thrown together with adjectives such as dead, lust, arrogant, blind and made; the result, memorable, slightly off-the-wall brand names However, as the market becomes more competitive naming conventions become increasingly important in order to stand out from the crowd. There’s a delicate balance here between having a distinct brand that elevates your offering and having a name that is easy to shout out to the bar tender. The more complex a name, the harder it is to remember and recognise. In addition, the brand must be available to be trademarked. And it is not just other beers that have to be considered, but wine and spirits trademarks, too.

Despite the fact that it is an emerging market segment, there have already been a number of infringement cases. Not all of them have made it to court — some are settled or resolved with a cease and desist letter. But those that do involve litigation can be incredibly costly for the parties concerned, especially smaller concerns and start-ups that don’t have the financial resources.

In 2015 Brooklyn Brewery filed suit against a California-based start-up for infringing on its Brooklyn Black Ops brand. The brewery — Black Ops Brewing — lost the case and is now called Tactical Ops Brewing Inc.

As the Black Ops Brewing, scratch that, Tactical Ops Brewing, case demonstrates, getting a brand trademark right is critical. Of course this isn’t the only case of trademark infringement in the beer world, nor is it always the smaller breweries who are doing the infringing.

In the UK, family-owned Hogs Back Brewery filed suit in 2015 against international C&C Group (specifically the Magners brand) for infringing on its Hazy Hog cider trademark. The suit came after Magners launched, not another cider or beer, but a portable cider dispenser — Cider Pig — that features similar branding. The case is ongoing.

In such a fast-paced and competitive market with an incredible drive to get product out quickly, there may be the inclination to fast-track the trademark screening and clearance process, either ignoring it completely, or making use of free search tools available on the web. However, looking at the number of infringement cases — not just in the brewing space, but across industries — and it is clear that putting the initial time, effort and budget into a comprehensive trademark process makes long-term sense and can save a brand from having to change its name or pay out damages for trademark infringement.