Legal issues: Freetail Brewing Co.

[JJL]

Actually I doubt that that's the case. The cost to have a patent attorney essentially on-staff doing things like that is pretty darn high. As it's a specialized area of law, you'll find that generally speaking they are able to charge higher rates. Usually upwards of $500 p/h. I'm honestly not sure that a small brewery could afford to have an attorney constantly checking stuff like that.

On the other hand, I could see them having someone on their office staff checking this stuff like once or twice a week, and then forwarding it on to counsel to churn out the C&D. That's a .2 hour bill, because it's a form letter saved to their system where they only have to change a few particulars.

The really funny thing about this letter is that it will cost (presumably) Steelhead some more money. If they had, as others suggested, called over, said hey, we understand you're using this, we just want to clear it up, but legally we are obligated to send the C&D letter, then they wouldn't have gotten this snarky response. Which, BTW, for those who have said they would just go ahead and sue Freetail after receiving this, note that standing would be removed, as he immediately said in his response that he will acquiesce, and give up the use of that name. But now, not only has Steelhead gotten themselves some bad press, they will also incur an additional legal fee since their attorney will have to review this letter once received, and then communicate the results back to the client. That's probably another .5 hours in billings.

Well done!

Definitely not an on staff attorney. Typically, they'd have a preferred attorney in the TM field that they call when they need a TM issue resolved. My company is in the same general situation. We manufacture goods under a number of brand names that we sell in a number of countries. (Don't get me started on international TM.) We're not a huge company. The cost is nowhere near $500 an hour, but it is in the hundreds per hour. I'm going to guess that this was an initial search, not an ongoing search. Someone mentioned they won a GABF medal recently. That's why I'm guessing it was a TM attorney that handled the process. I agree that you wouldn't have the attorney do the ongoing search. Usually, you do have an internal employee handle this and then pass it off to the attorney for the C&D letters.

But, the one thing that I think most people are assuming is that Steelhead (allegedly) knows or even cares who Freetail is. I think as homebrewers/craft beer drinkers we get this romatic notion that craft breweries are some exclusive band of brothers. That they are all comrades in the fight to take down BMC. The reality is they are all businesses trying to make a profit and increase their market share. It's not being a jerk for defending your product. It's not being a jerk for not making a personal phone call to another brewery who is infringing on your TM to give them a "heads up" that you are sending a C&D letter. No other business would do this. There's no other segment of the business community where this would be expected.

 

[JJL]

You would have no legal recourse to go to court... They are not brewing a beer by the same name... Its like their hoprocket or something i think... they can call a process anything they want... But they could have changed it on the website... it IS listed under beers... very confusing

I think blowing a hole in a Nintendo or game console is legal in 5 counties though.

They could sue for illegally using their mark, but there would be no point. They would have to show damages from the use of their mark, which would expensive, if not nearly impossible to do.

 

[Firebat138]

exactly... but people are saying they could sue for writing the letter. Which I think is incorrect. Dont they say in the letter that they DONT make a beer using that name. Whether they are still using the TERM for whatever reason... I dont think they can be sued for being funny... But I have been wrong on many occasions.

 

[stamandster]

You may be thinking of Monster Energy Drinks who sued the people who make Vermonster Beer. I think The Vermonster was like a huge barleywine. They settled out of court after Monster Energy got reamed on the webs and people started boycotting them.

Nope, but close
Monster Cable Drops Suit Against Monster Mini Golf - The Consumerist

 

[JJL]

exactly... but people are saying they could sue for writing the letter. Which I think is incorrect. Dont they say in the letter that they DONT make a beer using that name. Whether they are still using the TERM for whatever reason... I dont think they can be sued for being funny... But I have been wrong on many occasions.

No, the language in the letter is largely irrelevant to the matter. Really the only part of the letter that anyone is going to care about from a legal perspective is the part where Freetail says that they'll agree to stop using the mark.

Actually, from the tone of the first few paragraphs of the letter, I thought Freetail was going to say no.

 

[Clanchief]

exactly... but people are saying they could sue for writing the letter. Which I think is incorrect. Dont they say in the letter that they DONT make a beer using that name. Whether they are still using the TERM for whatever reason... I dont think they can be sued for being funny... But I have been wrong on many occasions.

I don't think people are saying they could be sued for writing the letter. Rather, if they were the company having sent the C&D, and then they received that letter, that they would be so incensed that they could pursue further legal action. The problem is that in the letter, he clearly states that he agrees to the terms of the C&D, period. As long as he follows through on that, they have absolutely zero legal recourse.

 

[Airborneguy]

exactly... but people are saying they could sue for writing the letter. Which I think is incorrect.

When did I say that? (I'm ASSUMING you meant me since you initially responded with my quote)

You obviously mistook what I meant. I meant that if some ******* who I just sent a legally valid C&D letter to sent me that type of response, I would immediately take him to court for the initial infringement. Who in the world would think they could sue someone for sending a silly letter? Technically a person can sue another person for ANYTHING, but that is obviously not what I meant.

 

[Airborneguy]

But, the one thing that I think most people are assuming is that Steelhead (allegedly) knows or even cares who Freetail is. I think as homebrewers/craft beer drinkers we get this romatic notion that craft breweries are some exclusive band of brothers. That they are all comrades in the fight to take down BMC. The reality is they are all businesses trying to make a profit and increase their market share. It's not being a jerk for defending your product. It's not being a jerk for not making a personal phone call to another brewery who is infringing on your TM to give them a "heads up" that you are sending a C&D letter. No other business would do this. There's no other segment of the business community where this would be expected.

+1

This perfectly explains most of the posts on this thread. This thought process pervades many of the discussions here because most people have no idea what it is like to run a business.

 

[Clanchief]

They could sue for illegally using their mark, but there would be no point. They would have to show damages from the use of their mark, which would expensive, if not nearly impossible to do.

Yeah, they would have a bitch of a time proving harm. It's a beer produced and sold in Texas, and very possibly not available in any of the markets where their beers are sold. They could possibly argue a harm in that it would create confusion if they then tried to sell that beer in Texas, but most courts won't grant judgment on a potential, future harm like that.

 

[gingerdawg]

Nope, but close
Monster Cable Drops Suit Against Monster Mini Golf - The Consumerist

Closer than close - infact right on the money.
Brewer Sued By Monster Energy Drink Asks America For Help - The Consumerist

 

[MeatyPortion]

heh: https://www.google.com/search?rlz=1C1PRFA_enUS432US432&sourceid=chrome&ie=UTF-8&q=hopasaurs+rex

 

[the_bird]

When did I say that? (I'm ASSUMING you meant me since you initially responded with my quote)

You obviously mistook what I meant. I meant that if some ******* who I just sent a legally valid C&D letter to sent me that type of response, I would immediately take him to court for the initial infringement. Who in the world would think they could sue someone for sending a silly letter? Technically a person can sue another person for ANYTHING, but that is obviously not what I meant.

What would you sue for, though? They've agreed (in writing) to stop using your trademark (silly dinosaurs or not). You aren't going to be able to prove damages for the trademark infringement. It would be a complete and utter waste of your time; best-case, you'd just get a judge to tell them to do what they'd already agreed to do.

 

[Airborneguy]

I didn't see that they agreed to stop. Didn't read the whole letter because I honestly didn't think it was funny.

 

[the_bird]

Please tell me you at least saw the dinosaur.

 

[Airborneguy]

Yes, I saw it

Don't get me wrong, I have a sense of humor and all, but that letter just came across as childish to me. I'd never act like that professionally.

 

[the_bird]

Well, to be fair, he probably had been drinking....

 

[fifelee]

Yes, I saw it

Don't get me wrong, I have a sense of humor and all, but that letter just came across as childish to me. I'd never act like that professionally.

Dude let loose a bit.
This isn't some high end engineering firm where professionalism is necessary. This is beer. Most people brew so they can get away from legal/professional garbage.

 

[g-love]

Yes, I saw it

Don't get me wrong, I have a sense of humor and all, but that letter just came across as childish to me. I'd never act like that professionally.

Man Airborneguy..... I agree with most of the stuff you say on HBT (I lurk more than I post), but you're bumming me out on this one!

 

[Airborneguy]

Dude let loose a bit.
This isn't some high end engineering firm where professionalism is necessary. This is beer. Most people brew so they can get away from legal/professional garbage.

I think I covered the let loose part. One doesn't have to always let loose though. And the last part of your quote is pure fairy tale. Brewing is a business once you take it to the professional level. Try being all "cool and brotherly" with zoning boards, health agencies, the Fed, etc. I'm sure professional brewing can be very fun at times, but I've seen more that indicates that it is just like any other job/business out there.

Man Airborneguy..... I agree with most of the stuff you say on HBT (I lurk more than I post), but you're bumming me out on this one!

Thanks! But like I said, I'm no Debbie Downer, I just don't see this as something I can support without a lot more info. I'm all for retaliatory responses, and even proposed one at work today for a friend who's doctor is screwing him, but that was over-the-top, especially in a situation where there must have been some basis for the initial contact to begin with.

 

[nukinfuts29]

Best. Letter. EVER.

 

[Beerrific]

If I am ever in San Antonio, I know where I want to go to drink. They make a beer with that t-rex drawing as the logo and call it "angry duck rex" or something. I would buy that t-shirt.

I also love how they scanned the letter crooked. haha

 

[nukinfuts29]

You know what I'm printing this out and hanging it up in the brew room.

 

[iparks81]

"Word to Yo Mamma!" I like this guys attitude. we need more of these type of ppl around the brewing community.

 

[mcarb]

Wow dude. While I agree that the letter was not that professional, I think that was the whole point of the letter. One business is acting all professional and whatnot and sending him a cease and desist order that he thinks is crazy. It would be like Budweiser sending me a C&D letter because I say I am the king of Beer. It's obvious from his response that he doesn't take the whole thing (business of it) too seriously. He has no plans on competing with Steelhead brewing.

If you can't see the humor in his response, wow.

I think I covered the let loose part. One doesn't have to always let loose though. And the last part of your quote is pure fairy tale. Brewing is a business once you take it to the professional level. Try being all "cool and brotherly" with zoning boards, health agencies, the Fed, etc. I'm sure professional brewing can be very fun at times, but I've seen more that indicates that it is just like any other job/business out there.



Thanks! But like I said, I'm no Debbie Downer, I just don't see this as something I can support without a lot more info. I'm all for retaliatory responses, and even proposed one at work today for a friend who's doctor is screwing him, but that was over-the-top, especially in a situation where there must have been some basis for the initial contact to begin with.

 

[TrooperThorn]

This is excellent.

Thanks for sharing with the rest of the class!

 

[Airborneguy]

I guess I'm just a loser 'cause I can't get on board with this one, oh well.

Search my posts, plenty of nonsense is fine by me. This one struck me as childish. If you think my opinion deserves a dramatic "wow", that's fine by me.

 

[mcarb]

But see that's what's so great about it. Imagine if the guy would have responded as expected "Dear Sir, we apologize for any misunderstanding.......". End of story.

The way it played out is that now the people at Steelhead look like asses due to their heavy handed tactics. The dude at Freetail gets all sorts of free publicity. And we all get a laugh. Childish and immature? Absolutely. Effective? Probably much more so that a serious letter would have been.

I guess I'm just a loser 'cause I can't get on board with this one, oh well.

Search my posts, plenty of nonsense is fine by me. This one struck me as childish. If you think my opinion deserves a dramatic "wow", that's fine by me.

 

[usfmikeb]

Defending your mark doesn't require an attorney, it just requires a letter be sent. Personally, if I'd been in the shoes of the OR brewery, I would have sent them a letter myself, instead of paying a bloodsucker to send it.

 

[Beerrific]

Defending your mark doesn't require an attorney, it just requires a letter be sent. Personally, if I'd been in the shoes of the OR brewery, I would have sent them a letter myself, instead of paying a bloodsucker to send it.

Yeah, really. You can probably get the proper legal "form" online for $14.95 and send it yourself and come across a lot less jerkish.

 

[RiverCityBrewer]

But see that's what's so great about it. Imagine if the guy would have responded as expected "Dear Sir, we apologize for any misunderstanding.......". End of story.

The way it played out is that now the people at Steelhead look like asses due to their heavy handed tactics. The dude at Freetail gets all sorts of free publicity. And we all get a laugh. Childish and immature? Absolutely. Effective? Probably much more so that a serious letter would have been.

"heavy handed tactics"... really? If you think that a C&D letter is a heavy handed tactic then I heavily urge you never to own/run a business because you are very likely to be overwhelmed. I am a software developer and my company receives probably a dozen or more of these a year and send out more than 3x the amount we receive, mostly due to licensing and IP issues associated with software development. Its simply the cost of doing business. I'm also with Airborne as I'm not sure why people are reading so much into this... the C&D is par for the course, the response however was not.