Bells suing a small brewer

[GilaMinumBeer]

Loudoun Porter anyone?

 

[bluehende]

Well, while not black and white, there is no way that 22 hours can be considered a fair and reasonable amount of time to make such a decision. They were being asked to decide to basically re-brand their business overnight. Could their refusal be seen as a first legal step? If you're Bells and you want to draw attention away from being nothing more than a bully, then yes. However, I don't believe that it is a first legal step by definition, but to Bells, it likely looked like a veiled threat that they would see this play out in the courts before they re-branded their business. As a result, I can see a little of both sides, but I too would never be able to decide to re-brand my business overnight. If I had to make a choice in that timeframe, I would say no because it would have seemed like the better choice for my business.

For anyone who didn't know of Innovation, it's my understanding that they do have a bit of a following and their beers are fantastic. Their only downfall, if there is one, is that they're not smack dab in the center of Asheville where they can get maximum exposure.

As usual, you never hear the whole story from either brewer. This 24 hr claim comes from the fact that Bell's was up against a deadline to file their objection. They both admit that they had been in discussions. If you are in discussions for close to a year and you know in 24 hrs a window closes you should not be shocked when they call you and tell you 24 hrs to decide. They actually had no obligation to call you at all.

 

[bluehende]

First Gila, the whole "Bells innovation.." Witty, I'll give you that. And Im asking a genuine question here because I can see there is something all of us can learn from this..

In the opposition filing presented by Bell's, its clear that "Inspired Brewing" is trademarked. Its also clear that, while the phrase "brewing innovation" has been used by Bells in the past, it has not been trademarked. How does that give Bells a valid argument to prevent Innovation from using it?? And if there is a valid argument, how does this affect the right to fight for and protect a businesses trademarks?

Using it in business can grant them what is called a common law trademark. You do not have to register a trademark to own it. See the New Belgium vs Oasis action. The problem is you need to get a declaratory judgement to actually own it. It gets complicated but that would allow Bell's to actually sue over an infringement. In this case Bell's could have filed for that or even a trademark infringement lawsuit. Both of these would have been a much more expensive problem for Innovation. At this point if you feel that your possible common law trademark is being threatened you file an objection as the cheapest way to protect yourself. The bottom line is probably that Bell's registered trademark "inspired brewing" is a hard sell, but I will add not impossible. The claim of a common law trademark on bottling innovation is a pretty strong case. Not hard to convince me that Innovation Brewing and Bottling Innovation is confusing. Again not a slam dunk, but certainly a reasonable argument. Every new brewery should be aware of these problems. A local brewery being opened by a friend of mine has had to change it's name 3 times. Money was spent branding. The difference is my friend put on his big boy pants and realized that avoiding these problems is more important than a stupid fight. He never asked or received any money. He was very frustrated , but never blamed the other breweries.

 

[bluehende]

Perhaps I misread, it appeared to me that the document stated in line 10 that the opposed (Bells) "owns title and interest in the brewing innovation trademark".

Thus acknowledging the use of the words as a trademark by use of the word trademark instead of acknowledging it as a slogan.

Thus, if the words brewing innovation (despite being used with since 1985) are in fact trademarked then it does bolster Bells argument.

Bell's asserts in the opposition document that they started using the "trademark" brewing innovation since 1985, but they don't provide any information that states they received an official trademark.
From here, it looks like they put that in to bolster their claim, but under further scrutiny, it just looks like they trying to blow smoke.
Its just typical lawyer BS because their claim is weak.

Google common law trademarks. You will find it is not just blowing smoke.

 

[TrustyOlJohnson]

Using it in business can grant them what is called a common law trademark. You do not have to register a trademark to own it. See the New Belgium vs Oasis action. The problem is you need to get a declaratory judgement to actually own it. It gets complicated but that would allow Bell's to actually sue over an infringement. In this case Bell's could have filed for that or even a trademark infringement lawsuit. Both of these would have been a much more expensive problem for Innovation. At this point if you feel that your possible common law trademark is being threatened you file an objection as the cheapest way to protect yourself. The bottom line is probably that Bell's registered trademark "inspired brewing" is a hard sell, but I will add not impossible. The claim of a common law trademark on bottling innovation is a pretty strong case. Not hard to convince me that Innovation Brewing and Bottling Innovation is confusing. Again not a slam dunk, but certainly a reasonable argument. Every new brewery should be aware of these problems. A local brewery being opened by a friend of mine has had to change it's name 3 times. Money was spent branding. The difference is my friend put on his big boy pants and realized that avoiding these problems is more important than a stupid fight. He never asked or received any money. He was very frustrated , but never blamed the other breweries.

Bluehende,
I appreciate your response..
I have no doubt that it has been a frustrating process for your friend..

 

[TrustyOlJohnson]

.

 

[wailingguitar]

Using it in business can grant them what is called a common law trademark. You do not have to register a trademark to own it. See the New Belgium vs Oasis action. The problem is you need to get a declaratory judgement to actually own it. It gets complicated but that would allow Bell's to actually sue over an infringement. In this case Bell's could have filed for that or even a trademark infringement lawsuit. Both of these would have been a much more expensive problem for Innovation. At this point if you feel that your possible common law trademark is being threatened you file an objection as the cheapest way to protect yourself. The bottom line is probably that Bell's registered trademark "inspired brewing" is a hard sell, but I will add not impossible. The claim of a common law trademark on bottling innovation is a pretty strong case. Not hard to convince me that Innovation Brewing and Bottling Innovation is confusing. Again not a slam dunk, but certainly a reasonable argument. Every new brewery should be aware of these problems. A local brewery being opened by a friend of mine has had to change it's name 3 times. Money was spent branding. The difference is my friend put on his big boy pants and realized that avoiding these problems is more important than a stupid fight. He never asked or received any money. He was very frustrated , but never blamed the other breweries.

Good points. In our case we had to drop the first company name that we chose after we had used it during our start up. We then had to drop a specific brand name due to the fact that when combined with our new company name, , shared words with another brewery. :/ We stopped that before it started, but they would have been in their rights to stop us using the name.

Intellectual property law is a funny thing and it is VERY important to remember that no matter how silly it may seem on the surface 1) no matter how small a matter, if you don't defend your mark, you lose strength, and 2) no company is going to throw money at a legal matter without reason

 

[zmanzorro]

Moral of the story:
Better research your brewery name
If you think you have a good slogan, trademark it

Problem solved.

 

[fimpster]

Does this mean I'll have to start calling my bell end something else?

Now there's a term I haven't heard since I was in the UK. Wonder how many folks on this side of the pond got the reference?

Maybe we should start calling Bells the Bell End Brewery.

 

[madscientist451]

The "common law trademark" is interesting , but in this case, Bell's using the phrase "bottling innovation since 1985" may not prevent Innovation Brewing from receiving a trademark. The Trade Mark office examining attorney could find nothing that should prevent Innovation Brewing from getting the trademark.

 

[bluehende]

The "common law trademark" is interesting , but in this case, Bell's using the phrase "bottling innovation since 1985" may not prevent Innovation Brewing from receiving a trademark. The Trade Mark office examining attorney could find nothing that should prevent Innovation Brewing from getting the trademark.

I am not sure this is not the outcome that Bell's wants. If the trademark office rules that Bell's common law slogan and Trademarked slogan do not conflict with the then trademarked Innovation Brewing they would be free to use it everywhere without fear of suit from them.

 

[lschiavo]

If Innovation were shipping their beer up for Bell's to bottle for them, and they had been since 1985, there would be no issue.

 

[mbauer013]

I am not sure this is not the outcome that Bell's wants. If the trademark office rules that Bell's common law slogan and Trademarked slogan do not conflict with the then trademarked Innovation Brewing they would be free to use it everywhere without fear of suit from them.

I don't know, I think Bells just wanted a co-existence agreement, and if the Trademark office states there is no conflict, they can both continue to use it. Sounds like a de-facto co-existence ruling to me. To bad they couldn't have worked it out before the legal fees though if this is the case.

 

[BierCraft]

Rights to a trademark can be acquired by being the first to use the mark in commerce or by being the first to register the mark with the U.S. Patent and Trademark Office. Bell's did not fulfill the second option, as far as we know, and therefore must rely on the first.

Under the first option, the mark must first be used in commerce, which it was. Secondly, the mark may qualify for protection (and can be registered) only after it has acquired secondary meaning (secondary meaning directly describes, rather than suggests, a characteristic or quality of the underlying product). A descriptive mark acquires secondary meaning when the consuming public primarily associates that mark with a particular producer, rather than the underlying product, and this is really only applicable in the areas in which the product is available. Furthermore, Bell's only uses the slogan on bumper stickers and not on the products or websites, which weakens Bell's argument.

The debate at the U.S. Patent and Trademark Office will hinge on the comparison of Bottling Innovation and Innovation Brewing, how similar they are, is there possible confusion between the brands due to the similarity, does the public associate either slogan/name with one brand and not the other, where the slogan is used, etc...

However, Bell's released a statement on their website:

"We have not, and are not asking them to change their name or their logo. There is no lawsuit. We are not suing them. We have not asked them for money. We have not asked them to stop selling their beer. We are asking them to withdraw their federal trademark application. Our concern is with their United States trademark application and potential impact on our brand, which we have spent 30 years building."

In the end, they still want Innovation Brewing to stop the application process, but have at least offered to "coexist". It might be that Innovation Brewing is being stubborn as they rejected Bell's offer and asked for a large sum of money (reportedly). It might also be that Bell's is being predatory by filing a lawsuit, possibly with the knowledge they might lose, but with the knowledge that they can outlast and bankrupt Innovation Brewing during these proceedings, only to buy the trademark later for a small fee as Innovation Brewing might need any money they can get.

Lesson to be learned: Trademark as soon as possible.

Prost from Germany

 

[Weezy]

Being limited to NC =/= "coexist"

I have every confidence that Bell's will win its argument at the TTAB. If you look at any of their decisions, they're heavily favored toward first to use plaintiffs. It sure smells like *********gery to me regardless. I've bought my last Two Hearted ale and if I see anyone buying a pint, i'll be sure they hear the story, starting off with "does the phrase 'bottling innovation since 1985' ring any bells to you?"

 

[rocketsan]

Dropped by Innovation on Saturday for a Hops and Robbers IPA, delicious.

Double Trouble Brewery in Canada has a Hops and Robbers IPA...

 

[rocketsan]

http://www.beeradvocate.com/beer/profile/28433/78623/

 

[govner1]

Being limited to NC =/= "coexist"



I have every confidence that Bell's will win its argument at the TTAB. If you look at any of their decisions, they're heavily favored toward first to use plaintiffs. It sure smells like *********gery to me regardless. I've bought my last Two Hearted ale and if I see anyone buying a pint, i'll be sure they hear the story, starting off with "does the phrase 'bottling innovation since 1985' ring any bells to you?"

They may win the battle & lose the war ( market). I passed on several Bells offerings this week & chose other craft brews. Innovative shopping!!
And I'll continue to do so.

 

[kombat]

Double Trouble Brewery in Canada has a Hops and Robbers IPA...

http://www.beeradvocate.com/beer/profile/28433/78623/

Welcome to the conversation.

 

[wailingguitar]

What people slagging Bell's (who have a better case than many and have really not been jerks about this) seem to keep missing is that it is the nature of the law that actually forces them into this. "Vigorously Defend" is the key phrase, if you don't do that then from that point on you open yourself up to all kinds of crap. Hypothetically, lets say they don't defend this, there is then nothing to stop AB-InBev or Miller/Coors from coming along and using some part of a phrase they have been using. They throw in a trademark app, say 'well, Belll's didn't defend against X, so they have relinquished rights to their unregistered marks', Bell's (or whoever) doesn't have the $$ to fight them, they lose it and the snow ball keeps growing bigger. Bitch about the law that makes this kind of action a necessity, not the companies whose businesses have to deal with it.

 

[Highside]

Innovation has offered Bells™ several co-existence agreements.

 

[Weezy]

Vigorous defense does not have to mean that you must completely prevent and deny all use of of the TM. This isn't a new shoe company trying to use the Nike swoop. This is a brewery using a generic word as a proper name vs. A brewery using the same word in a marketing phrase. The only overlap is that they're in the same industry. There's not enough opportunity for confusion to justify such a heavy handed approach (not that the review board will see it that way). So we get to vote with our dollars. Let the free market reign!

If they want to be good neighbors, they can defend their TM and deny IB their TM, but allow them to freely use the name with an unlimited, very inexpensive if not free, license.

 

[Paps]

we get to vote with our dollars. Let the free market reign!

.

:rockin:

 

[baron]

Went to a NHL game the other day -- and they had a craft brewery area. I asked the guy which beer was their biggest seller and he said "Bell's Two - Hearted Ale". (This was out of around 10 or so taps)
I was somewhat surprised.
Their beers are pretty good, but not much of a two-hearted or Oberon fan. Those styles are just not my cup of tea. But -- do like their stouts.

 

[PlexVector]

Now there's a term I haven't heard since I was in the UK. Wonder how many folks on this side of the pond got the reference?

Maybe we should start calling Bells the Bell End Brewery.

Maybe Bell End already has a brewery...Oh, you're refering to that other bell end.

 

[rocketsan]

Welcome to the conversation.

Sorry if I stole your thunder Zeus.... :/

 

[harrydrez]

Nope, you should chill out. I can deal with a hipster, but dealing with someone with your **** attitude is something no one should have to deal with. Calm down kiddo, it's all going to be okay.

I am calm, you're the one trying to stifle dissenting opinions, kiddo.

 

[govner1]

Time to take a timeout children !

 

[Hello]

I'm off this cazy train. I hope at the very least you RDWHAHB.

 

[A2HB]

I just brewed a two hearted clone and when its ready im going to buy a couple bottles of the real deal to compare it with. Bells is alright by me and Ill continue to support them and their products