Legality of beer clones?

[HOP-HEAD]

Isn't this sort of what pharmacies do with their house brand of brand-name drugs? I mean they have the exact "recipe" in some (most/all?) cases, and sell it right next to the brand name for less.

Yes and No... in the case of drugs, they can only be replicated after their "brand name" patent has expired. Though the patents last about 20 years (I believe), they actually are obtained during the testing, trials, etc... and so they only last about 10 years after the drug is actually approved and on the shelves. Once it's expired... it's essentially free-reign... copy at will. Meanwhile, the brand name company is still trying to pay off the R&D costs, and so they're forced to continue to charge more.

 

[pj_rage]

Yes and No... in the case of drugs, they can only be replicated after their "brand name" patent has expired. Though the patents last about 20 years (I believe), they actually are obtained during the testing, trials, etc... and so they only last about 10 years after the drug is actually approved and on the shelves. Once it's expired... it's essentially free-reign... copy at will. Meanwhile, the brand name company is still trying to pay off the R&D costs, and so they're forced to continue to charge more.

Does this apply even to "new" "drugs" that are merely a combination of already existing drugs, just packaged differently and/or together? Like adding sudafed to robitussin, or maybe airborne or something (I'm not a pharmacist so I don't know for sure if those are great examples, but there has to be something where they take two or more existing ingredients, combine them in effective dosages and market a new product). I think such a case would be more applicable here too, for that matter.

 

[N3Bruce]

In the Flying Dog gift shop in Frederick MD, they actually sell all-grain kits of some of their beers.

 

[creekrat]

I know some craft breweries will even give out the recipes themselves. Pretty sure dogfish head did this with their cloned recipes

 

[betarhoalphadelta]

So if a cola company stumbled upon a coke recipe so close as to be indistinguishable from the original, and sold it for less (or the same/more, whatever), would it be punishable? Is it illegal to keep guessing and if you get it, good for you?

What about if a chef at a nice restaurant makes a dish you really like, is it then illegal to try to recreate it and serve it at your own restaurant?

Morals and bad business aside, is it illegal to do either of these things?

Not at all illegal.

It's only illegal if you market the cola using the Coca-Cola trademark in some way, or if your restaurant is perhaps using the other restaurant's name on the menu. I.e. if you violate someone's trademark in your marketing of the clone, there's a problem. But if the recipe just happens to be the same and taste the same, no problem.

 

[Mb2658]

You can't patent a taste or a scent. How would you? Think about it. Describe with particularity a certain taste or smell. You can patent a production process. That's why Coke's recipe is so closely guarded and why there are so many knock off fragrances.


Sent from my iPad using Home Brew

 

[thisisbeer]

I feel like some people are missing this. You can't copyright a recipe. As long as you don't use the name, logos, or other things associated with a company you could open a brewery and brew a Heady Topper clone and call it "Something Else IIPA". Now if there was a special technique to brew this beer like a special way to dry hop or some other technique that was created by the brewer, then it could be copyright infringement. Medicine is different because it's the affect of the "recipe" that they are after. It's in a different category then a food or beverage recipe. There is a ton of studying involved in medicine and how the ingredients affect the final way it works.

 

[GuldTuborg]

Yup. We'd better go back in time 3.5 years and let everyone know.

Oh, and special processes can be protected by patents, not copyright.

 

[troy2000]

We keep mentioning coca-cola, and their recipe being a trade secret instead of patented.

So if a cola company stumbled upon a coke recipe so close as to be indistinguishable from the original, and sold it for less (or the same/more, whatever), would it be punishable? Is it illegal to keep guessing and if you get it, good for you?

What about if a chef at a nice restaurant makes a dish you really like, is it then illegal to try to recreate it and serve it at your own restaurant?

Morals and bad business aside, is it illegal to do either of these things?

Isn't this sort of what pharmacies do with their house brand of brand-name drugs? I mean they have the exact "recipe" in some (most/all?) cases, and sell it right next to the brand name for less.

I would think that normally, there's nothing wrong with you selling something that tastes as much like Coca Cola as possible. Your problems would start if you started calling it Coca Cola, implying it was Coca Cola being sold under a generic label, copying Coke bottles and logos closely enough to create confusion between their product and yours, or otherwise trying to make customers believe they were buying Coca Cola.

Historical footnote: years ago I had a vinyl wrap for beer cans that turned them into an amazing copy of a Coke can - except that it said CooCoo Cola. I had a beer in my hand the day I met my wife-to-be, and when we finished talking she actually asked if I wanted another Coke to take with me. You'd think seeing me laugh and unwrap the beer would've been all the warning she needed to stay away from me....

 

[cheezydemon3]

I made some awesome BANG BANG shrimp last night!

Is Bonefish gonna sue me?












1 lb small shrimp peeled/de-veined

1 cup sweet thai chili sauce

•3/4 cup of Sugar
•1/4 cup Rice Vinegar
•1/4 cup of water
•1 tbsp finely minced garlic (about 5-6 garlic cloves)
•1 teaspoon crushed red pepper flakes
•1 teaspoon Sriracha (or less)
•1 tbsp of cornstarch
•1 tbsp of cold water
•1/2 teaspoon salt

cornstarch for dredging

2 cups mayo

Fry the shrimp at 350F coated only in corn starch for 2 minutes THEY WILL NOT TURN GOLDEN.

Toss in mayo/sweet chili

EAT

 

[troy2000]

I made some awesome BANG BANG shrimp last night!

Is Bonefish gonna sue me?


1 lb small shrimp peeled/de-veined

1 cup sweet thai chili sauce

•3/4 cup of Sugar
•1/4 cup Rice Vinegar
•1/4 cup of water
•1 tbsp finely minced garlic (about 5-6 garlic cloves)
•1 teaspoon crushed red pepper flakes
•1 teaspoon Sriracha (or less)
•1 tbsp of cornstarch
•1 tbsp of cold water
•1/2 teaspoon salt

cornstarch for dredging

2 cups mayo

Fry the shrimp at 350F coated only in corn starch for 2 minutes THEY WILL NOT TURN GOLDEN.

Toss in mayo/sweet chili

EAT

No, but PETA might sue you for trying to drown poor little shrimp...

You show 1 cup Thai chili sauce, 1 1/4 cup+ of other ingredients, and two cups of mayo. Are you really pouring more than a quart of sauce over a pound of shrimp? Or are the bullet-pointed items just the igredients for the Thai sauce?

 

[GuldTuborg]

Is Bonefish gonna sue me?

They can try, but they'd lose, as there's no legal basis for it. My main concern would be you lasting long enough on this Earth to make it to a hearing after taking in 2 cups of mayo in a single sitting.

 

[olotti]

I often wonder with the wealth of information out there if one brewery doesn't see a recipe they like and use it and then call it something else

 

[cheezydemon3]

No, but PETA might sue you for trying to drown poor little shrimp...

You show 1 cup Thai chili sauce, 1 1/4 cup+ of other ingredients, and two cups of mayo. Are you really pouring more than a quart of sauce over a pound of shrimp? Or are the bullet-pointed items just the igredients for the Thai sauce?

The thai chili sauce ingredients are listed and make maybe 1.5 cups of that.

 

[podz]

Just curious how legal it is for different homebrew supply stores to sell clones of commercial beers? Don't they have some kind of copyright to prevent this?

A recipe can be copyrighted. That is, a printed recipe. A process can be patented. That is, a step by step process.

You will be following neither.

 

[troy2000]

The thai chili sauce ingredients are listed and make maybe 1.5 cups of that.

OK, thanks. I had pretty much decided that's what was going on, but decided to doublecheck.

There's a pound of shrimp somewhere in town that should be feeling a chill right now; it's in mortal danger as soon as I get off work this evening. I have everything else but the rice vinegar and corn starch....

Actually, I'll probably make the sauce tonight, let it meld in the fridge overnight, and cook the shrimp tomorrow.

 

[GuldTuborg]

A recipe can be copyrighted. That is, a printed recipe.

Depends on what you mean by "recipe." The list of ingredients, quantities, methods of use, and the like cannot be copyrighted. A written description of the process can.

 

[mattd2]

Depends on what you mean by "recipe." The list of ingredients, quantities, methods of use, and the like cannot be copyrighted. A written description of the process can.

The only thing that can be copyrighted is the "written" word, meaning someone else can not reproduce that recipe (as in write it down and claim they made it up themselves). Anyone can brew that recipe and call it their beer, but technically they cannot then write down the recipe for their beer and give it to someone else.
Same goes for a description of a standard process. If it is a new unique process then it can be patented.

Rereading your post I think I am taking about the same thing

 

[Calichusetts]

The Alchemist has a "proprietary" method for dry hopping that I believe they will copyright. No idea what it is though. At the same time, they may not, copyrights can be read and reverse engineered. They simply do not share how they do it at this point

 

[Calypso]

Yes, yes you can. Once an idea is put into any fixed form, from a drawing, diagram, recipe, formula or detailed instruction, it is automatically protected.

Not in the US you can't.

http://www.copyright.gov/fls/fl122.html

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

 

[Phunhog]

I often wonder with the wealth of information out there if one brewery doesn't see a recipe they like and use it and then call it something else

I have often wondered the same thing!! First and foremost a brewery is a business. It just makes sense to not reinvent the wheel but rather to master "acclaimed" beers. Speaking of legalities can a brewery advertise that they cloned another rare commercial beer? Of course it would have to have a different name but can they say that their beer is the same recipe and tastes "exactly" like or even similar to say....Heady Topper or any other rare beer. Now I can see some ethical issues but at the end of the day if the beer is great the beer is great.

 

[GuldTuborg]

The only thing that can be copyrighted is the "written" word, meaning someone else can not reproduce that recipe (as in write it down and claim they made it up themselves).

I was going to address this, but Calypso beat me to it. I believe I explained myself above, as well. I can take any written recipe, provided it's a list of ingredients and forms of them (e.g., domestic pale malt, crushed; onions, chopped and soaked in vinegar 20 min), and distribute it however I like. These kinds of written words are not the type of written words that can be protected by copyright.

And many things other than written words can be protected.

The Alchemist has a "proprietary" method for dry hopping that I believe they will copyright.

Read the copyright FAQ on the copyright.gov website. Methods are not the kind of thing that can be protected by copyright.



Damn, I feel like I need to do a HBT copyright mini-session.

 

[cheddarhed3]

I would think that craft breweries would encourage the "cloning" of their beers. Would cause more sales as Homebrewers purchase more to compare with their clones. And the community as a whole seems to be more cordial than most and I'm glad it is. Personally I really like Bells Two Hearted. Can't wait to brew Dead Ringer once I return from deployment. Cheers!!


Sent from my iPhone using The tears of Viking fans.

 

[Calypso]

The Alchemist has a "proprietary" method for dry hopping that I believe they will copyright. No idea what it is though. At the same time, they may not, copyrights can be read and reverse engineered. They simply do not share how they do it at this point

They certainly won't be copyrighting said method. Assuming it is a novel process, they may attempt to patent it.

Patent - applies to methods, machines, and materials.
Trademark - applies to non-functional elements that distinguish an item from similar items.
Copyright - applies to a particular original expression of an idea or some piece of information.

You patent a new strain of hops or a new (and non-obvious) brewing method or apparatus. You trademark a brewery or beer name (or other trade dress). You copyright a description of a beer (or don't, more likely). The only protection you can afford a recipe is to keep it secret. Look at the hoops Coca-Cola goes through to protect their secret recipe.

 

[Calypso]

Read the copyright FAQ on the copyright.gov website. Methods are not the kind of thing that can be protected by copyright.

Damn, I feel like I need to do a HBT copyright mini-session.

What he said. And an overview of IP law as it relates to brewing would be interesting!