DuClaw - A New Take On The Trademark Problem

[betarhoalphadelta]

DuClaw sues Left Hand over trademarked beers

This is really weird. I can see a brewery randomly choosing a beer name that another brewery has selected. But two choose two from the same brewery? Then to sue them in a trademark dispute and demand a jury trial of all things? My first thought was that someone at +DuClaw Brewing Company had a personal beef with someone at Left Hand.

But it gets deeper. I see a number of beers on DuClaw's web site that appear to use the same as several other breweries.

http://www.duclaw.com/beer-main/

Now, I'm not going to do the FULL research here - some of these beers may have been introduced by the other breweries after DuClaw released theirs. But I'm seeing some strange tendencies for the DuClaw beer to be added to BeerAdvocate 6-8 months after another beer of similar name.

And some of the below, of course, are stretches whether there's intent (i.e. the idea of using "Venom" in an IPA name is not exactly novel, and "Bad Moon" can come from the song). But I'd love to see some of you folks take a look at their web site and see how many I've missed?

31 Pumpkin Spiced Lager - Firestone makes Pale 31

Anti-Venom - Boneyard Brewing makes a Hop Venom IPA

Bad Moon Porter - Boulder Brewing makes a Bad Moon American Black

Black Lightning American Black - Lightning brewery in CA makes a Black Lightning Porter

Consecration American Brown - Obviously Russian River makes a Consecration

Dirty Little Freak Chocolate Brown - Green Flash makes "Le Freak" and has also made a "Little Freak" Saison

Euforia - Ska Brewing makes Euphoria

Hellrazer - Both Sierra Nevada and Blackwater in the UK have made Hellraiser beers

Mayhem - Epic and Midnight Sun both make beers called Mayhem

Misery - Erie makes a Misery Bay IPA

Misfit Red - A NY brewery makes "Misfit Toy"

Mysterium - Real Ale Brewing makes a Mysterium Verum,

Pax Nemesis - Founders has been doing a Nemesis since 2009, Pax Nemesis was added to BA in 2010

Snake Oil - Sudwerk makes an Elixir Snake Oil

Sweet Baby Jesus - Added to BA about 7 months after Evil Twin's Even More Jesus

Twisted Kilt - Added to BA 11 months after Thirsty Dog's Twisted Kilt

Retribution - High Water Brewing in CA makes a Retribution Ale

 

[sandyeggoxj]

I need to do some research on this it appears. Trademark law is weird, that is for sure.

 

[DoWBrewer]

DuClaw is a great brewery that makes great beers. They has been around for awhile (since 1996) and as the market become saturated with new breweries they are going to sue each other over rights to names.

The similar names in your post are meaningless. You are assuming that those breweries had the names first and more importantly feel like their copyright is being infringed.

 

[hehawbrew]

I love duclaw. I live in communist occupied maryland and it's one of the few good things about the state.

Just had their hell on wood barley wine. Mmmmmm. So good.


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[betarhoalphadelta]

DuClaw is a great brewery that makes great beers. They has been around for awhile (since 1996) and as the market become saturated with new breweries they are going to sue each other over rights to names.

The similar names in your post are meaningless. You are assuming that those breweries had the names first and more importantly feel like their copyright is being infringed.

First, I understand (and to some extent, support) the legal status of trademark, and recognize that companies must defend their trademark in order to maintain it. I think a lot of craft beer folks overreact to these cease-and-desist and legal threats, because they don't understand the intricacies of trademark law.

However, this instance still sticks out at me. Several of the examples (at least as measured by date added to BA, which admittedly isn't a foolproof metric) show a 6-12 month lag between another brewery using a name and DuClaw using it. In the cases of Sawtooth and Black Jack, clearly Left Hand was using them first. In several other cases, it at least appears that DuClaw lagged another brewery closely enough to suggest it was intentional.

There are a lot of reasons that a brewery would do this in bad faith. I'm not accusing them of these reasons without evidence. I'm just pointing out that this looks excessively weird, like behavior that didn't arise through pure chance.

 

[Dutchbier]

I too shall do dome research. I plan to sample all the aforementioned products and see if they tast the same.

 

[DoWBrewer]

The article makes it pretty clear that DuClaw enforced their trademark after Lefthand entered the Maryland market. I am not sure that DuClaw distributes outside of the state. That is the reason for the delay.

 

[betarhoalphadelta]

The article makes it pretty clear that DuClaw enforced their trademark after Lefthand entered the Maryland market. I am not sure that DuClaw distributes outside of the state. That is the reason for the delay.

It also makes it pretty clear that DuClaw created these beers several years after Left Hand had already built brands around these beers -- beers that had won medals at GABF, so they had already achieved notoriety.

That's how trademark law works. If you register a trademark something that another entity is already using, you are granted rights to the mark but the other entity is grandfathered in to using the mark everywhere they've traditionally used it.

However, it does grant you the mark in the areas where you've traditionally used it.

A cynic would say that this is a play by a brewery to keep certain other successful breweries out of their "turf". After all, if Left Hand cannot legally sell two of their successful beers -- Sawtooth being one of their more popular -- they might avoid Maryland entirely. A cynic would say that by trying to make the fight as bitter as possible, including asking for a jury trial and for monetary damages, they're signaling to other successful breweries like Russian River, Founders, Evil Twin, etc, that they might as well not come to Maryland lest they get pulled through the legal wringer.

A less cynical -- but still somewhat cynical -- person would say that perhaps they wanted to gain from the notoriety of these other successful beers by releasing beers of the same or similar name, and proactively registered the trademarks so that the other breweries couldn't come after them. A lot of those breweries are west of the Mississippi, perhaps. People who have heard "ooh, Nemesis is awesome!" and only see DuClaw on the shelf might think that it's the same beer that they've heard of, not realizing that the one they've heard of is from Founders.

Again, I'm not saying this is what they're doing. But I'm saying that it sticks out at me as excessively weird.

 

[sandyeggoxj]

Uinta just had to change the name of their IPA because of trademark issues. And big sky is suing AB for using their trademarked slogan: "hold my beer and watch this."

This stuff goes around more than we usually catch.

 

[FarmerTed]

They did the same thing with Ska (this was linked to in the comments of the first article, I don't go around memorizing crap like this, lol):

http://blogs.westword.com/cafesociety/2013/03/ska_brewing_battles_marylands.php

Maybe they can push around Ska, but Left Hand is a hell of a lot bigger than DuClaw. I don't see them winning this one, although maybe it's worth it for the publicity. I agree with the OP, it sounds like a pattern. I don't even see why Euphoria is all that great of a name, to be honest.

 

[weirdboy]

Hey, remember when both Russian River and Avery came out with beers named Salvation?

Instead of suing each other, they worked together to create a new beer Collaboration Not Litigation Ale.


Instead of being cool about it, DuClaw has demonstrated a pattern (at least to me) of copying other breweries' names, either deliberately or not, and then suing those other breweries.

Guess who is never drinking any more DuClaw beer?



BTW, DuClaw does in fact sell outside of Maryland, as does Left Hand. In fact, they compete in the same markets already in places like Virginia, Pennsylvania, etc.

 

[jgarretson]

I have nothing constructive to add other than I love Left Hand beers so I support them for no other reason than that.

But it sure seems like DuClaw is acting a tad bitchy and it's ironic given some of their beer names. Also, their whole art style gimmick seems childish. Therefore I dismiss their entire legal argument.

Does filing a trademark require just one word or do you need to file for the entire name? In other words, is Black Jack trademarked or is it Black Jack Porter? Seems like you should have to trademark then entire name to avoid stuff like this.


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[betarhoalphadelta]

Does filing a trademark require just one word or do you need to file for the entire name? In other words, is Black Jack trademarked or is it Black Jack Porter? Seems like you should have to trademark then entire name to avoid stuff like this.

I'm not an IP lawyer; I just play one on the internet.

But generally to infringe upon a trademark doesn't require exact name or spelling, only enough similarity where it is reasonable to cause confusion in the market.

If you don't believe me, just try selling something in a red can marked Coca-Cota...

 

[downtown3641]

I love duclaw. I live in communist occupied maryland and it's one of the few good things about the state.

Just had their hell on wood barley wine. Mmmmmm. So good.


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Interesting. I'm in the Northern Virginia area and have never met a Communist from Maryland, just many horrible drivers.

 

[Teromous]

There's a lot of these cases that come up. Bell's Brewery sends C&D to Northern Brewer, Magic Hat sues West Sixth, then there was the whole thing with Strange Brew (homebrew shop) threatening Strange Brewing (brewery)...and then Strange Brewing takes action back against them.

Euforia - Ska Brewing makes Euphoria

Funny you mention it, because Ska did file a petition against DuClaw.

Honestly this whole thing is maddening...

 

[reefriot]

Mad River brewing sued and won against Steelhead brewing from Eugene and they had to change there name to McKenzie brewing since Mad River has a line of beers with Steelhead in the title. Its all a bunch of BS. Sure didnt make Mad Rivers beer any better!

 

[two_hearted]

If you don't defend your trademark, your at risk of losing it.

However, I think most of these cases could have been avoided with a phone call rather than a C&D or lawsuit. Although, all press is good press. I had never heard of Duclaw, but now I know about them. However, this doesn't necessarily make me want to buy their beer.

 

[progmac]

i feel like as this industry matures and market saturation takes hold that we'll see more and more of this kind of thing.

 

[grizzly2378]

Uinta just had to change the name of their IPA because of trademark issues. And big sky is suing AB for using their trademarked slogan: "hold my beer and watch this."

This stuff goes around more than we usually catch.

Big Sky dropped their suit against AB after AB agreed to stop using the "hold my beer and watch this" slogan.

I remember when Big Sky was still largely unknown outside of MT, they were sued by the makers of Moosehead, claiming that Moose Drool was an infringement. We all know how that turned out. The irony is that back then (mid-90s), Big Sky was the little guy fighting the big bad corporate brewery. Now, many in MT see Big Sky as the big commercial "sellouts". Not me, I love Big Sky, but it's crazy how things have changed in a relatively short time.


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[The_Bruster]

Just one more reason I will never turn my homebrew hobby into a for-profit brewery. My father had to deal with this kind of crap when he and my stepmother owned a business as well, and it's one reason they eventually sold it all. (He works at Home Depot now and has never been happier )

Duclaw is a bit overpriced anyway -- but damn, their Sweet Baby Jesus is heavenly.

 

[Brettomomyces]

Among the very first beers that Left Hand Brewing in Longmont, Co., received awards for were Sawtooth Ale and Black Jack Porter, which earned gold and bronze medals, respectively, at the 1994 Great American Beer Festival in Denver. In Maryland in 1998, DuClaw Brewing Company introduced Sawtooth Belgian White and Black Jack Stout, which first earned Governor's Cups at the Brewers Association of Maryland competitions in 2005 and 2008, respectively. Now, DuClaw is suing Left Hand, claiming in a trademark-infringement case filed yesterday in Maryland U.S. District Court that the brewery is violating DuClaw's trademarks for the two brands, since Left Hand's versions are now distributed in Maryland by Rosesdale-based Legends Limited.The logo of Duclaw's Black Jack Stout, left, next to a bottle of Left Hand's Black Jack Porter[/caption] Among the very first beers that Left Hand Brewing in Longmont, Co., received awards for were Sawtooth Ale and Black Jack Porter, which earned gold and bronze medals, respectively, at the 1994 Great American Beer Festival in Denver. In Maryland in 1998, DuClaw Brewing Company introduced Sawtooth Belgian White and Black Jack Stout, which first earned Governor's Cups at the Brewers Association of Maryland competitions in 2005 and 2008, respectively. Now, DuClaw is suing Left Hand, claiming in a trademark-infringement case filed yesterday in Maryland U.S. District Court that the brewery is violating DuClaw's trademarks for the two brands, since Left Hand's versions are now distributed in Maryland by Rosesdale-based Legends Limited. - See more at: http://www.citypaper.com/search/bcp-blog-20716-20140326,0,3687943.story#sthash.sPgfjdEx.dpuf

Oh grow up. And get a graphic designer that doesn't appeal to teenage boys.