*Ss Brewing Technologies Giveaway - Enter Now!*

Home Brew Forums > Home Brewing Beer > General Beer Discussion > Battle over the "strange" name
Reply
 
LinkBack Thread Tools
Old 11-15-2012, 04:30 PM   #131
mccabedoug
Feedback Score: 0 reviews
Recipes 
 
Join Date: Nov 2010
Location: Douglas, MA
Posts: 164
Liked 9 Times on 4 Posts

Default

Interesting read. IMHO, the brewery is in the wrong here and should have sought legal counsel before naming themselves "Strange Brewing." At least they should have spent a few minutes looking to see who has trademarked a similar name. Heck, it's easy to check these things for yourself (for free). Just go to the US Patent and Trademark Office website and check for yourself. I am sure the brewery did this. I wonder what they did with the results.

I work for a big company and have received a C&D letter for a product we named. End result was that we changed our product's name because we were too close in the name we chose. Different name, different letters, too close. I learned a few things during that unpleasant time.

Basically, you can name your product with an existing word/name/phrase as long as the exisitng mark is not in your market space. For example, take McDonalds. You can have a plumbing supply store, kite company, sign manufacturer. No problem: different market space. However, if you try and name a restaurant McDonalds you may be in violation of of Mickeydee's mark. They may or may not defend their mark but no good attorney that you consult as you are beginning the process of opening your doors would advise you say that that name is a good one.

Why do people care? The argument is that a company can spend a lot of money establishing brand equity. McDonalds is a bad example (because their food sucks) but if you take the name 'iPhone' a lot of people equate that with a quality product. So, if you happen to be in the electronics business and you name something close to that, Apple may contend that you are using 'their good name' and brand equity to equate quality with your product. I'm not saying that is the case here but that is why companies spend money defending their mark(s).

I used big company examples to make my points and some may think these are just examples of large, greedy, soul-less companies. Fact is, trademark law doesn't care about the size of a company. Same rules apply, company size doesn't matter - a mark is a mark.

Strange Brew was the name of a (good) movie and the HB shop used the name. My guess is that the HB shop was granted the mark because the makers of the movie let the mark expire, or didn't care enough, or were unaware of the small shop and/or it was in a different market. I dunno. Regarding the HB shop using the GD's dancing bear, GD Enterprises also probably doesn't care for the same reasons (except expiration). However, if an up-n-coming band (vs a garage GD-cover band) tried to use the dancing bear or Steal Your Face logo, I bet they'd respond. The decision to defend (or not defend) a mark depends upon how valuable the holder of the mark feels their trademark (name) is to their company and livelhood.

As stated previously, the C&D letter is standard practice. The hope in writing this letter is to avoid expensive litigation while at the same time implying (because it is written in 'legal-ease') that you should take this seriously - kinda like a little dog growling at a big dog.

Regarding the C&D BTW, the Brewery did something that was not cool: they tried to use their response as a marketing/advertising activity. They should not have done that. If they consulted an attorney in crafting their reply, he/she would have certainly told them to leave out the fact that they have won medals. What does that have to do with replying to a C&D letter for trademark violation?

This is unfortunate but I feel that the Brewery unwisely or unwittingly chose that name. The HB shop is under no obligation to help the brewery. The downside to all of this is that both parties will likely spend a lot of $$ and that is tough in this economy. I know a lot people think the HB shop owner is being a DB. Fair enough. However, it's gotta be tough to be in his shoes but I'm guessing the HB shop and its name are his sole livelihood.

Safe harbor statement: I live in MA but I am not a Strange Brew customer - that shop is too far away and I frequent more local shops. This all just struck a chord with me because my company lived through this a bunch of years ago.

__________________
mccabedoug is offline
4
People Like This 
Reply With Quote Quick reply to this message
Old 11-15-2012, 04:42 PM   #132
Cromwell
HBT_SUPPORTER.png
Feedback Score: 0 reviews
Recipes 
 
Join Date: Aug 2011
Location: Thousand Oaks, CA
Posts: 777
Liked 73 Times on 60 Posts
Likes Given: 132

Default

Well, again, the lhbs has trademarked the name, but what I don't think most people realize is that the trademark means virtually nothing. There seems to be an idea that because they have a Trademark, that they own the name and that they will win the court case. Nothing could be further from the truth - the Trademark has to be protected in court, and court is really the only real test of it's validity. Any single entity in the long list of places that have used strange brew before it was trademarked can invalidate the Trademark. I bet the lhbs loses this one.

__________________

Primary: Beer / Secondary: Beer / Lagering: Old beer.

Cromwell is offline
 
Reply With Quote Quick reply to this message
Old 11-15-2012, 07:37 PM   #133
mccabedoug
Feedback Score: 0 reviews
Recipes 
 
Join Date: Nov 2010
Location: Douglas, MA
Posts: 164
Liked 9 Times on 4 Posts

Default

Quote:
Originally Posted by Cromwell View Post
Well, again, the lhbs has trademarked the name, but what I don't think most people realize is that the trademark means virtually nothing. There seems to be an idea that because they have a Trademark, that they own the name and that they will win the court case. Nothing could be further from the truth - the Trademark has to be protected in court, and court is really the only real test of it's validity. Any single entity in the long list of places that have used strange brew before it was trademarked can invalidate the Trademark. I bet the lhbs loses this one.
You are 100% correct in that a Trademark means nothing unless you are willing to defend it and the court agrees/disagrees.

That said, I'm not a betting man but if I was, I'd accept your wager. Why? That HB store is the sole owner of that registered Trademark (it took me 30 seconds to confirm this). You've a new company in a similar (beer) market space combined with a Trademark owner that wants to defend his mark. I've not a dog in this fight but if I had one, it'd be the HB store. Either way, you gotta admit, it's interesting.
__________________
mccabedoug is offline
3
People Like This 
Reply With Quote Quick reply to this message
Old 11-28-2012, 05:07 PM   #134
Wayne1
HBT_SUPPORTER.png
Feedback Score: 0 reviews
 
Wayne1's Avatar
Recipes 
 
Join Date: Mar 2008
Location: Littleton, Colorado
Posts: 1,067
Liked 69 Times on 43 Posts
Likes Given: 9

Default Benefit to support Strange Brewing legal fight

Benefit Proposed to Support Strange
Wayne1 is offline
 
Reply With Quote Quick reply to this message
Old 11-28-2012, 06:30 PM   #135
nathanthn
Feedback Score: 0 reviews
Recipes 
 
Join Date: Nov 2011
Location: Milford, MA
Posts: 34
Liked 5 Times on 4 Posts
Likes Given: 9

Default

FWIW Strange Brew has been my preferred LHBS since I started brewing and they don't deserve all the vitriol aimed at them for this. As far as I can tell as an outside observer they've acted in a reasonable manner to a business dispute.

__________________
nathanthn is offline
kombat Likes This 
Reply With Quote Quick reply to this message
Old 11-28-2012, 07:05 PM   #136
jerrodm
Feedback Score: 0 reviews
Recipes 
 
Join Date: Sep 2012
Location: Silver Spring, MD
Posts: 636
Liked 117 Times on 87 Posts
Likes Given: 2

Default

Sub'd. Can't wait to hear how this turns out. And, not that my opinion or predictions matter, but (1) the LHBS sounds a little douchey, particularly that propaganda posted on the thread; (2) I bet the brewery will end up changing its name; and (3) my guess is that the negative backlash won't affect the LHBS very much iin the long run. All the locals, who frequent the physical shop, are likely to side with the LHBS, and most online customers probably won't even notice, or won't care enough to change their habits.

OK--fight!

__________________
jerrodm is offline
 
Reply With Quote Quick reply to this message
Old 11-28-2012, 07:39 PM   #137
Camping57
Feedback Score: 0 reviews
Recipes 
 
Join Date: Jan 2012
Location: Rockford, IL
Posts: 101
Liked 4 Times on 4 Posts

Default

I just checked the records in the USPTO (Patent and Trademark Office) and the HBS trademark is for "retail stores" and "beer". No mention of brewing. This could be interesting. I also didn't find a listing for the brewery, but my search may not have been good. It sounds like the HBS has the trademark, I'm surprised that the License folks didn't check the brewers trademark status when they were doing their applications.
Having been involved in tons of patent disputes, the only ones that will make out in the end of this is the lawyers, the two little guys will get eaten up by expenses (our patent attorney charged $550 per hour for preparing filings and stuff like this). They need to try to figure out some sort of a settlement.

__________________
Camping57 is offline
 
Reply With Quote Quick reply to this message
Old 11-28-2012, 08:46 PM   #138
mccabedoug
Feedback Score: 0 reviews
Recipes 
 
Join Date: Nov 2010
Location: Douglas, MA
Posts: 164
Liked 9 Times on 4 Posts

Default

Quote:
Originally Posted by Camping57 View Post
I just checked the records in the USPTO (Patent and Trademark Office) and the HBS trademark is for "retail stores" and "beer". No mention of brewing. This could be interesting. I also didn't find a listing for the brewery, but my search may not have been good. It sounds like the HBS has the trademark, I'm surprised that the License folks didn't check the brewers trademark status when they were doing their applications.
Having been involved in tons of patent disputes, the only ones that will make out in the end of this is the lawyers, the two little guys will get eaten up by expenses (our patent attorney charged $550 per hour for preparing filings and stuff like this). They need to try to figure out some sort of a settlement.
Beer and beer brewing are too close, IMHO. Above, I stated the same comment that you did: it is hard to imagine that the brewery's attorneys, at the time the owners were looking for a name, did not advise the owners that there is a very-similar, trademarked name in that market space. You're right: this oversight is going to cost both parties a lot of money.
__________________
mccabedoug is offline
 
Reply With Quote Quick reply to this message
Old 11-28-2012, 09:23 PM   #139
mccabedoug
Feedback Score: 0 reviews
Recipes 
 
Join Date: Nov 2010
Location: Douglas, MA
Posts: 164
Liked 9 Times on 4 Posts

Default

Quote:
Originally Posted by jerrodm View Post
Sub'd. Can't wait to hear how this turns out. And, not that my opinion or predictions matter, but (1) the LHBS sounds a little douchey, particularly that propaganda posted on the thread; (2) I bet the brewery will end up changing its name; and (3) my guess is that the negative backlash won't affect the LHBS very much iin the long run. All the locals, who frequent the physical shop, are likely to side with the LHBS, and most online customers probably won't even notice, or won't care enough to change their habits.

OK--fight!
I agree with your 2nd and 3rd points. I kinda disagree with your first point, however. Here's why I think (and this is just my dumb opinion) people don't like the LHBS defending its mark: folks like me think of home brewing as a hobby - something to do in my spare time that I enjoy. It's not my livelihood, not a matter of life and death, but fun. Also, we all love craft brew and brew pubs. I know I do. So, since we all love beer and brew pubs, and home brewing is just a hobby that we do for fun, why can't the LHBS just let the brewery keep their similar (albeit likely infringing) name?

The difference here is that the LHBS is probably the sole livelihood of the Strange Brew guy (I don't know for sure). It's probably not just a hobby, or something he does just for giggles - it may be how he makes his money in life. Applying for that mark probably cost him some serious coin. So, someone then opens up a brewery with a name that is eerily close to his trademarked name. He should just allow that? Love of brew pubs and hop-bursted APAs aside, walk in his shoes for a minute.
__________________
mccabedoug is offline
 
Reply With Quote Quick reply to this message
Old 11-28-2012, 09:44 PM   #140
Cromwell
HBT_SUPPORTER.png
Feedback Score: 0 reviews
Recipes 
 
Join Date: Aug 2011
Location: Thousand Oaks, CA
Posts: 777
Liked 73 Times on 60 Posts
Likes Given: 132

Default

I think a lot of people misunderstand what it means to have a trademark. It doesn't cost "some serious coin", and neither is it any kind of proof that they legitimately own the name. Google "trademark" and you'll find lawyers willing to do it for you for $150. All it really amounts to is a dated claim to the name, which can be challenged in court. I could trademark the name "mccabedoug" tomorrow, and start making beer with it. As long as nobody argues the point with me, I own the trademark. Better, if mccabedoug actually challenges me over it, and I threaten to go to court over it and wage a long and costly trademark battle, he'll probably back down and give up.

None of that means that my claim to the name is actually defensible. There's a pretty good chance mccabedoug could prove prior use related to beer, and that would nullify my trademark, IF he decided to pay the money and go to court.

I'm a little surprised that so many people seem to think having a trademark somehow means that the trademark is defensible.

__________________

Primary: Beer / Secondary: Beer / Lagering: Old beer.

Cromwell is offline
 
Reply With Quote Quick reply to this message
Reply



Quick Reply
Message:
Options
Thread Tools


Similar Threads
Thread Thread Starter Forum Replies Last Post
A Very Strange Gose Recipe - "New Ocean Waves" taylja06 Recipes/Ingredients 10 10-05-2012 04:14 AM
Strange "fermentation" in secondary (...with pictures!) sweetnighter Fermentation & Yeast 5 10-28-2010 05:06 PM
"strange" flavor in some of my brews aoverturff Beginners Beer Brewing Forum 19 08-17-2010 02:55 PM
The "Strange" Brewery.. Another Build w/tons o' pics.. JamieT DIY Projects 56 03-30-2010 02:51 AM
Strange Rubber taste after using "old" CO2 Ripbeer Bottling/Kegging 9 01-06-2010 08:18 PM