Alcohol production is a creative business. Folks in our industry work hard to create new beverages, name them, and market them in fun and inventive ways. But as in any creative industry, sometimes businesses conflict about who owns which concept.
In an industry where sales are highly influenced by graphic design and branding, it’s critical to rely only on the language and branding which are truly original to your brand. Doing so protects your business from questions of legitimacy and from the expense of a protracted legal battle over ownership of marketing language. Unfortunately, trademark law is a confusing and opaque concept, and not everyone has the cash flow for ongoing consultations with an intellectual property or craft beverage attorney.
You may have heard about Sycamore Brewing Co. suing Stone Brewing Co. over their use of the phrase “Keep it Juicy,” or Stone Brewing’s win over Molson Coors’ Keystone Light’s “Stone” cans. Creativity and business growth are generally great signals in any brewery business, but do those things mean you need to be more careful? In this article, we’ll explain the basics of what beverage producers need to know about trademark law, as well as how you can be proactive about protecting your intellectual property.
This may be obvious to some, but just a reminder that we are not lawyers and cannot provide legal advice — consult your attorney for the most up-to-date information and context.
Why Is Trademark Law Important?
Trademark law is one type of intellectual property law — or laws that protect and govern the ownership and use of unique creations. A number of things can be protected by intellectual property laws: songs, poetry, designs, and phrases are examples of creations that may be protected by trademark law. Trademark law is important because it protects the creators of these new and original ideas from having their work used without their consent. Each individual (or in some cases, each company) that creates original work for commerce purposes can trademark their creations to protect them from theft or abuse by others.
What to Know About Trademark Law
What Is a Trademark?
In the United States, intellectual property is governed by the United States Patent and Trademark Office (USPTO). According to the USPTO, “[a] trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors”. It may be useful to obtain a trademark for a design, slogan, or other creation that is particularly integral to your marketing plan.
As the USPTO points out on their website, if you have a trademark, you don’t own unrestricted rights to a certain creation. Owning or registering a trademark protects how others can use that creation in situations where it might be confused with your existing products. For example, if you use a slogan you’ve trademarked to market a seasonal flavored seltzer, another producer can’t come along and use the same slogan to market their seltzer.
In order to register a trademark, your creation must be inherently distinctive. The USPTO provides information on how to create a slogan or design that’s sufficiently unique to qualify for a registered trademark. Even if you think you’ve created something totally new and interesting, intellectual property attorneys may still decide it isn’t distinctive enough to afford you the legal protections of a registered trademark.
Registering vs. Owning a Trademark
When you think of trademarking a new design, you probably think of submitting paperwork to the USPTO with the help of an attorney. That process is how you register your trademark. As we said, the USPTO may deny your attempt to register your trademark if they think your idea isn’t original enough. But once they do grant your trademark, you can use the ® symbol to show competitors that you’ve registered your design.
But registering a trademark is expensive, and it isn’t the only way of securing your trademark rights. You don’t technically need to register your trademark to own it. If you use that original creation, slogan, or design to conduct business, you already own your trademark. You might choose to register your trademark eventually because a registered trademark offers better protection against misuse. When you own your trademark but haven’t registered it, you only possess those trademark rights for the geographic area where you do business.
Common Law Trademark Rights
If you own but have not registered your trademark, those are considered common law trademark rights. Because these only protect your trademark in your geographic location, many business owners instead opt to register their trademark with their state, nationally with the USPTO, or internationally with other countries as well.
Benefits to Registering a Trademark
When business owners are researching potential ideas, they (or their attorney) may refer to the USPTO database. When your trademark is registered, your trademark will be listed in the database, which will potentially head off any intellectual property disputes before they happen.
Peace of Mind
Your right to use your trademark as you see fit is much more secure when you register it compared to when you own it.
Advantage of Scale
Even if you don’t currently operate nationally or internationally, registering your trademark takes care of the legal side of things in advance. If you change plans and decide to expand, you already have large-scale trademark protection for your brand.
For more information on the benefits of registering your trademark, visit the USPTO website.
It’s free to own a trademark. But going through the process of registering a trademark can be quite expensive. It costs $250 to file for each trademark you want to register with the USPTO. That can really add up, especially if you have multiple marketing slogans, logo designs, beverage names, or other creations that you’re looking to register a trademark for. There may be other fees that come up in the process as well. You can fill out the trademark application and do trademark research yourself, but many opt to have an attorney do it for them, which of course represents another major expense. And the USPTO requires that you continually file documents to renew your trademark registration. Each time you renew a trademark, you’ll have to pay a filing fee.
Enforcing a Trademark
As we mentioned, the USPTO maintains a database of currently held trademarks. You or your attorney can use this database to do research about potential competitors in your industry, particularly before you go through the process of registering your trademark. Many companies also pay for a law firm to periodically conduct trademark research to make sure that there aren’t any other companies violating their trademark. You or your attorney will want to do research if you believe your trademarked creation is being used by someone without your consent.
Investing in trademark research may not always be a priority for your business, and that’s okay. But as you grow and more customers come to identify your brand with your language and designs, the more important it becomes to ensure that brands aren’t taking advantage of your intellectual property, even unknowingly.
Cease & Desist letters
If you do find a company using your intellectual property, typically your first line of response is a cease and desist letter. This is a common document that lawyers write for their clients. A cease and desist letter informs the recipient that they are using proprietary information and asks them to stop using your trademark within a certain period of time.
In many cases, a cease and desist letter is all the action necessary to stop a company from using your intellectual property. Companies and individuals don’t always do the research they ought to before creating marketing materials, and simply being made aware of their misstep will often resolve the issue without further action.
If you send a cease and desist letter and a company or individual continues to violate your trademark, you may choose to file a lawsuit against them. A lawsuit is one of the more extreme outcomes of a trademark violation, and many companies make efforts to avoid it when possible. A lawsuit, even a successful one, may harm your company’s public image. Still, they are an effective way to force competitors to stop using your trademarked material. If you win a trademark lawsuit, your competitor may also owe you money in damages or in profit they secured through prohibited use of your trademark.
As you might expect, since your business potentially has much to gain from a trademark lawsuit, the expectations are higher as well. You’d have to prove that your trademark was violated and that the trademark violation harmed your business.
How Beverage Companies Can Protect Intellectual Property
- Be proactive. Understand your intellectual property rights. If you don’t already have one, cultivate a relationship with an intellectual property attorney so that, if anything happens, you can turn to someone who already knows your business.
- Be creative and original. Ideas and creations that are unique and creative are more likely to be inherently distinctive (the standard the USPTO applies to decide whether your idea qualifies for a registered trademark). It’s also harder for competitors to mistakenly or intentionally violate your copyright when your slogans, designs, and other marketing materials stand out. Let your creativity run wild — and while you’re at it, do some market research to make sure no one has thought of the same thing.
- Register your trademark(s). We’ve discussed the benefits of registering your trademark at length. If your business can afford the legal costs, we strongly recommend you start the process of registering your trademarks. Doing so keeps your business options open and provides better legal protection in case of trademark violation.
- Stay up-to-date on privacy. There are many reasons to prioritize privacy for your business. One of them is to protect your intellectual property. While many violations of intellectual property are unintentional, some are a result of malice, corporate espionage, or hacking. Protect your IP and trademarks by keeping your physical office and digital documents as secure as possible.
Understanding the ins and outs of trademark law can help you protect your intellectual property. If you take the necessary steps like research and registering with the USPTO, you and your team will be able to focus instead on innovating. Everyone in our industry is better off when the laws protect owners of intellectual property, so embrace the possibilities of a unique marketing strategy.