Bell’s Brewery sends cease and desist letter to Northern Brewer

[redcoat_or_rebel]

something i've learned about law recently is that the terms we think in are not how the courts function. you could be completely in the right but if you're argument is flawed it is not the judges job to enforce the laws. they simply make decisions about your arguments. this is what judge's opinions and case law are all about.

so if you sue someone and cite a specific law or case that is not relevant then your suit is thrown out. or if you don't have a good defense or a crappy lawyer, you lose.

 

[Homercidal]

That recipe at Northern Brewer has always tempted me. I'm mostly curious to see what new name they come up with. I think it would be awesome if they made a joke about it.

I think it's cool. I mean, the name WAS very similar. Actually, 3-hearted almost sounds BETTER (by 50%). It's not the same is Monster Energy suing a brewery for using the name VERMONSTER. That's ridiculous.

 

[JRems]

Easy enough to change the name.
Its new name should be
"the kit formerly known as 3 hearted ale"

 

[BrewThruYou]

Eight Chambered Ale or Eight Chamber Ale

 

[Pilgarlic]

Disheartened Ale.

 

[VAShooter]

That recipe at Northern Brewer has always tempted me. I'm mostly curious to see what new name they come up with. I think it would be awesome if they made a joke about it.

I wish HB would allow us to submit name change suggestions and vote on the new name on their website!

I see Bell's case and point but cant we do anything anymore without a friggin attorney? What happened to picking up the phone, having a conversation, coming to terms and settling with a handshake?

Personally, I'm annoyed enough to replace Bell's with Stone for a while. I'll get over it.

 

[VAShooter]

"Michigan ding dong"

 

[Cold Country Brewery]

I wish HB would allow us to submit name change suggestions and vote on the new name on their website!

QUOTE]

Check their facebook page. They are asking for suggestions. So far they have a ton, a couple good ones.

 

[jeffjm]

As others have pointed out, this is entirely about trademark law and lawyers. It has nothing to do with Bell's trying to intimidate NB because they're afraid of losing sales. I'm sure Northern Brewer would love to sell so many kits that they noticeably affect the sales of the commercial beer they cloned, but it's not likely to happen.

Bell's has to put something in writing, because if they don't, they've basically forfeited any claim to the trademark and are screwed if somebody else starts marketing a commercial beer under the Two Hearted name.

 

[remilard]

I have no problem with what Bell's is doing. NB is clearly referencing their product.

Where I think this gets a bit silly is what just happened with Oscar Blues and Gordon Biersch. Gordon Biersch forced Oscar Blues to stop producing an actual BEER called Gordon. Now, this particular beer in question, was named in honor of Gordon Knight, one of the co-founders of Twisted Pine who died fighting fires in Lyons, Co. "Gordon" - the beer, was an imperial red ale (now renamed G'Knight) a beverage, to my knowledge. that Gordon Biersch doesn't even produce. So, understanding the circumstances, I don't see how there would be confusion between the two products.

Same thing happend to Dry Dock and its Seven Seas IPA. Like I said, I understand that Bells needs to protect its actual product and I don't think NB should be able to garner profits off of a specific reference to another company's property. However, what harm did Oscar Blues do to Gordon Bierch by happening to have a beer named "Gordon" and what room for confusion was there with a brewery in Colorado making a beer named Seven Seas do to a Washington brewery named 7 Seas. Note that the owner of Dry Dock said he would have been "happy" to change the name if he would have just gotten a phone call instead of a nasty letter.

Links to both articles are posted below.

http://blogs.westword.com/cafesociety/2011/01/gordon_biersch_forces_oskar_bl.php#

http://blogs.westword.com/cafesociety/2011/03/dry_dock_brewing_changes_the_n.php#

A salient fact here is that OB and GB had an oral agreement that OB would not distribute Gordon to states where GB operated. OB probably should have not made that agreement unless they meant to keep it.

 

[Brek81]

i thought "slippery bastard" was a good name due to the label

 

[Homercidal]

How about a "Who Farted" clone...

Close enough in sound identify with, and somewhat snickery to boot!

 

[Garyius]

Michigan beer lovers know about Larry Bell's Cafe ATM Scam, and the way he stalks former employees and tried to smear them and ace them out from distributors.

He makes great beer, but he is a bully and mean.

 

[Acoma]

Weak. It would be one thing if they were making and selling a beer to consumers named three hearted ale. Craft breweries give out their recipes all the time and usually have a mutual respect for home brewers. I have more respect for the way Nothern Brewer is handling it than Bells. I personally am not a fan of Two Hearted Ale in the first place but now Im even more not of a fan of Bells.

Theres too many other great beer companies out there than to support this one in my opinion. The rest of you can do as you please but Bells has left a bad taste in my mouth. Both literally and figuratively.

 

[jkreuze]

If you don't defend your mark against infringement you risk a court finding that you have, through inaction, abandoned your trademark. ("A mark shall be deemed to be “abandoned” if ... [A]ny course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services or in connection with which it is used or otherwise to lose its significance as a mark. 15 U.S.C.A. 1127 (2010)).

Sending a cease and desist letter via certified mail gives you proof for later on that you notified a potential infringer of your intention to defend your mark. You can see why this option is preferable to "just picking up the phone."

What happened in this story is not extraordinary, or even surprising, or anything to get worked up about. Nobody is being a jerk, or doing something other than what they ought to in good conscience do, considering the context.

 

[Austinhomebrew]

How about a "Who Farted" clone...

Close enough in sound identify with, and somewhat snickery to boot!

 

[McGarnigle]

So how does Austin Homebrew supply do it? They have a whole section of "Our Version of Commercial Brews." They don't even skirt around the issue, they have 4 types of Bell's kits you can buy.

Why can't all breweries be a cool a Surly (share the exact recipe with NB), and Rogue (list all their ingredients on the bottle). I like Bell's...a lot. But I think they are making mountains out of molehills here.

What's their main beef? Is it that the recipe is so close to the original they feel it will cut in their profits? Or is it that the name is so close to the original?

I'd guess Surly gets a cut of their kit sales at NB. What NB is doing with Surly is way beyond NB's other 'clones.'

 

[cklages]

If you don't defend your mark against infringement you risk a court finding that you have, through inaction, abandoned your trademark. ("A mark shall be deemed to be “abandoned” if ... [A]ny course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services or in connection with which it is used or otherwise to lose its significance as a mark. 15 U.S.C.A. 1127 (2010)).

Sending a cease and desist letter via certified mail gives you proof for later on that you notified a potential infringer of your intention to defend your mark. You can see why this option is preferable to "just picking up the phone."

What happened in this story is not extraordinary, or even surprising, or anything to get worked up about. Nobody is being a jerk, or doing something other than what they ought to in good conscience do, considering the context.

I totally agree. This reminds me of back in the day when land was registered under the Land Registry Act rather than the Land Titles Act. If people regularly crossed your land to access a place for a certain period of time unimpeded, you could actually lose the right to your own property permanently. Because of this, land owners would be forced to put up a gate and a no-trespassing sign once a year to prove that they still exerted control over that land. The other 364 days, they could just let people be. They weren't trying to be dicks, they simply were doing what the law required in order to keep what they owned.

Seems to me this sounds a lot like the same thing.

 

[olllllo]

You guys will pick up a torch and a pitchfork at any opportunity.

This is no longer an issue to any of the concerned parties.

http://northernbrewer.blogspot.com/2011/03/nb-bells-lets-all-relax-dont-worry.html

So please don't find yourself at odds with Bell's for protecting what they have, in kind, created. Bell's Brewing is amongst the finest producers of microbrewed ales, the world over. Their business obligations and the craft of the people who brew their great beers are separate entities, as any pro brewer can attest. I ask of you, our loyal homebrewers, not to call out or boycott Bell's for fulfilling their legal obligations. Remember, the people who acted on behalf of Bell's in instigating this change did so because of their commitment to their product, just as you choose NB because of your commitment to your product.

I for one look forward to Bells Three Hearted Ale and Bells Mofo 5 Hearted Eat That Gillette Mach 5 Ale

 

[MaltMonster]

Here is a link to Bell's explanation:

http://www.bellsbeer.com/news/19-Official response to the Northern Brewer situation from 3/22/11

Sending a cease and desist letter makes much more sense after reading their side of the story. According to Bell's they didn't even know about the kit until recently.

 

[JetSmooth]

You guys will pick up a torch and a pitchfork at any opportunity.

How DARE you, sir!?

Pistols at dawn!

*gloveslap*

 

[olllllo]

How DARE you, sir!?

Pistols at dawn!

*gloveslap*

Hey, I'm a veteran of the great besmirching of Sam Adams and several Dogfish Head, New Belgium proxy wars.

Dawn??

You have me at a disadvantage being you are in EST and I am in PST.

 

[McGarnigle]

Hey, I'm a veteran of the great besmirching of Sam Adams and several Dogfish Head, New Belgium proxy wars.

Dawn??

You have me at a disadvantage being you are in EST and I am in PST.

It will take 3 hours for his bullet to cross the continent. You'll get your shot off.

 

[JetSmooth]

Hey, I'm a veteran of the great besmirching of Sam Adams and several Dogfish Head, New Belgium proxy wars.

Dawn??

You have me at a disadvantage being you are in EST and I am in PST.

Then swords at sunset?

I shall meet thee in Tulsa, Oklahoma!

 

[redcoat_or_rebel]

How DARE you, sir!?

Pistols at dawn!

*gloveslap*

you forgot to demand satisfaction!!

 

[40watt]

Traffic was awful when I went through Tulsa. Was that because of you guys?

 

[drsocc]

I'm a law student, not a lawyer, so this is not legal advice. To keep your trademark, you have to defend it diligently. If you don't send a proper C&D you risk losing your trademark in court and as an attorney you'd get sued for malpractice. As impolite as a C&D is, it isn't a lawsuit and its not hurting anyone - it covers the company's ass not just from NB but anyone else who wants to use their trademark. Once you've covered your bases, then you can talk about licensing or some other compromise.

This really isn't as big a deal as everyone seems to think. A real attorney can step in and correct me/ add anything if they want.

 

[ArcaneXor]

Bell's has to put something in writing, because if they don't, they've basically forfeited any claim to the trademark and are screwed if somebody else starts marketing a commercial beer under the Two Hearted name.

I would think there's a nicer way to do that though, like a friendly phone call, so that the actual letter doesn't come as a surprise and make Bell's look like big biz ********.

 

[topend]

As a fellow lawyer myself, no one should lose sight of the context: Bell's has a trademark, and if they do not protect it they will lose it. It doesn't mean they don't like NB, it doesn't mean they are trying to be bullies. The way to protect your mark is to issue a cease-and-desist letter. It becomes "Exhibit A" if the issue ever goes to litigation.

Don't beat up on the lawyer, he is simply doing his job in protecting his client's rights.

 

[ReverseApacheMaster]

As a fellow lawyer myself, no one should lose sight of the context: Bell's has a trademark, and if they do not protect it they will lose it. It doesn't mean they don't like NB, it doesn't mean they are trying to be bullies. The way to protect your mark is to issue a cease-and-desist letter. It becomes "Exhibit A" if the issue ever goes to litigation.

Don't beat up on the lawyer, he is simply doing his job in protecting his client's rights.

Also a law student, so no bar card yet, but for all of you who think Bell was being ******** about it, think of it this way. Had Bell not taken due diligence to protect its trademark in a way provable in future disputes, it would risk MillerCoors being able to produce it's own Two Hearted Ale (also triple hopped to lock in the flavor) and Bell wouldn't be able to stop them. What's the bigger travesty?