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Quick, Name an Australian Beer(?)

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Who did not see this coming but should have? Hey Christopherson, who says beer and wine are closely related/un-related for trademark purposes? Hey Messinger thanks for telling me about this.

It is common knowledge that the beer field is crowded, when it comes to trademarks. But many steps further, even the beer-fish-trademark field is crowded, it appears.

  1. Dogfish
  2. Ballast Point Yellowtail
  3. Sculpin
  4. Roosterfish
  5. Shark Attack

And so on. NPR noted:

American trademark law lumps breweries together with wineries and distilleries, making the naming game even chancier. A widely circulating rumor has it that Yellow Tail Wines, of Australia, came after Ballast Point Brewing Co., in San Diego, for naming a beer “Yellowtail.” Ballast Point’s pale ale is now conspicuously lacking a fish-themed name (a signature, if not a trademark, of the brewery), though an image of a brightly colored yellowtail still resides plainly — and legally, it seems — on the label. A spokesperson for Ballast Point said the company could not discuss the matter.

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Dan on CBS Radio (talking about — what else?)

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In past years Dan was talking about beer law in magazines, podcasts, CLEs, on forums, and on Twitter. Now he has moved on, to radio. He was on CBS radio earlier this week, with Stacy Lyn, regarding the dramatic rise of craft brewing. Listen to Dan Christopherson and Stacy in the sound clips below. In a few years it will be hard to believe, but Dan notes that (in recent generations) “there weren’t any production breweries in the DC area until … 2011.”

 

 

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Taken!

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If you are looking for a great brand name for your new beer, it’s probably taken, as Dan Christopherson explains in today’s Washington City Paper.

The proliferation of breweries and the pressure for them to continuously turn out new styles of beers has created a trademark minefield for names. “Once you come up with an idea, then there’s just this fear that someone else beat you to it,” [Patrick] Mullane says. “Beer names are completely off the wall because there’s just so many of them out there.”

Most breweries will head to sites like ratebeer.com, beeradvocate.com, or Google to get an idea of whether something is already taken. Port City Brewing Company always goes the step further of having its lawyer look into potential names—although not every brewery does this. “You really have to have a more in-depth search that’s done by a professional, someone who knows what they’re doing as far as these trademark searches go,” founder Bill Butcher says. “It’s not something a layman can do an effective job at.”

In 1985, only 188 beer trademark applications were filed in the U.S. Last year, there were more than 4,600. And this year, the number is on track to surpass that, says beer attorney Dan Christopherson, who works for Lehrman Beverage Law in D.C. and specializes in trademarks. (Yes, beer trademarks are enough of an issue that there’s a lawyer who specializes in them.) Christopherson works with about 15 breweries in the D.C. area in addition others around the country.

“It comes up quite a bit,” Christopherson says of brewery trademark disputes. “It certainly makes the headlines a lot more frequently now, but I anticipate that there’s a lot of them, just from my own experience, that get handled behind closed doors.”

The full article is here. Dan is well on his way to being a leading authority on beverage trademarks in general and beer trademarks in particular.

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Beer with Lots of Protein – The Moderately Mighty Squirrel

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A couple times a year I hear about an alcohol beverage that is somehow, against all odds, “good for you.”

It happened again this week and so I eagerly rushed to the Public COLA Registry to see what was new. Lo and behold, I found the squirrel. A mighty one — or so it purports to be. The press release purported this new beer to have something like 10 times the protein compared to Bud Light.

The average analysis for Bud Light is above, to the right, and the one for Mighty Squirrel is to the left. The TTB-approved label shows the product to be a “Whey Beer.” Whey is apparently some sort of cheese protein and byproduct so I am turning this over to the cheese law blogger extraordinaire, for further elucidation.

There is no word yet, on how hard the Squirrel folks tried to push on this label. I don’t see any signs that they pushed particularly hard. For example, the rodent in question does not seem to have particularly impressive musculature (or even a tiny but visible rodent six pack). The whey, good-for-you-beer, and protein angles are not particularly new. Here is whey from way back. Here is protein from way back (in the form of Devotion, vodka with added casein). Here is good-for-you-beer from the last decade.

I can almost hear, and almost miss, the faint echo of Battle Martin directing:  “make the calf muscles smaller.”

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Not The Onion. California Man, “Beer Aficionado,” Alleges He is Last to Know Blue Moon is Coors and Not a Real Craft Beer. Sues.

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Yet another lawsuit about beverage labeling. This time it’s Blue Moon beer. The class action lawsuit (Parent v. MillerCoors LLC) was filed April 24, 2015 in state court, in San Diego. It alleges that MillerCoors is tricking consumers about whether Blue Moon is craft beer.

blueThere are now literally dozens of class action lawsuits, filed all around the country in just the past couple of years, in state and federal courts, against many of the most popular beer and spirits products in the country. Wine is notably absent, so far.

The complaint alleges that MillerCoors:

  1. makes more than 2.4 billion gallons of beer a year — about 12 times what the prevailing Brewers Association definition, for a craft brewer, allows
  2. falsely portrays the product as “artfully crafted,” when in fact it’s a macrobrew
  3. hides the MillerCoors affiliation under various fake entities
  4. misleads consumers into paying up to 50% more, via omissions and misrepresentations

For good measure, the suit alleges:

Defendant’s business practices are immoral, unethical, oppressive, and unscrupulous, and cause substantial injury to consumers, including Plaintiff and the other members of the Class. As a direct and proximate result of Defendant’s unlawful business practices, Class members suffered injury in that they paid a premium price for a product that would not ordinarily command a premium price, or purchased a product they otherwise would not have purchased, absent Defendant’s misrepresentations and omissions.

bmooNotice that the lawsuit does not really mention labeling, and instead focuses on “false and deceptive marketing.” Notice also that the labels at issue don’t mention “craft.” TTB has approved the Blue Moon labels something like 300 times since the 1995 brand launch. Here is one of the very few Blue Moon labels that actually mentions “craft” as in “artfully crafted.” It’s a bit strange that the slogan would be rampant in advertising but barely there on labels. Sometimes TTB’s beer reviewer is a bit on the strict side, but here the government has been fairly lax. In fact, in the early days, Coors described this U.S.-made beer as “Belgian” rather than “Belgian-Style.” The real Belgian beer companies put this to a stop with another lawsuit.

Plaintiff is remarkably astute about when he purchased Blue Moon, and the BA parameters, but had a weak spot in his discernment, even when his friends tried to give him a clue:

From 2011 until mid-2012, Plaintiff frequently purchased Blue Moon beer… . Relying on its advertising, its placement among other craft beers, and the premium price it commanded, Plaintiff, who is also a beer aficionado and home brewer, purchased Blue Moon believing it was a craft beer, as the term is commonly used by beer consumers and the Brewers Association. [Eventually] Plaintiff was informed by friends that Blue Moon is not a craft beer, but rather a mass produced beer made by MillerCoors. Plaintiff was initially skeptical, but eventually verified the facts through his own research. As a result, Plaintiff has not purchased Blue Moon since approximately July 2012.

No word yet about whether Plaintiff has switched to Shock Top.

The tide is rising:  Tito’s, Templeton, Breckenridge, Maker’s Mark, Jim Beam, Beck’s, Budweiser, Lime-A-Rita, Kirin, Skinnygirl, Tincup, Angel’s Envy, WhistlePig, and now Blue Moon. Google says Blue Moons come around every 2.7 years, but the suits are starting to pour in at a far faster rate.

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