An Explosion of Trademark Lawsuits: Has Money Driven the Spirit out of Craft Brewing?

Last year, Lagunitas Brewing gave up its right to use the number “420” on its beer labels. The brewery decided to drop the number after receiving a complaint from Sweetwater Brewing Company in Atlanta, which markets a “420 Pale Ale.” This was one of the more publicized disputes in craft brewing, but it is far from the only one.

I Thought It Was Supposed to Make You Guys Nonviolent

420 is a loosely-veiled slang for marijuana smoking, something that is closely associated with microbrewing. Many microbreweries offer a hemp ale of one kind or another, and the two brewers in question here are particularly involved in the marijuana subculture. Sweetwater Brewing Company also offers a “Danktoberfest” beer, the latest in its “Dank Tank” series. Dank is another term associated with the marijuana culture, although its meaning is becoming more general.

For its part, Lagunitas’ brand also stands on its pot-smoking credentials, which it waves as part of its generally defiant stance against authority. It attempted to market a beer named “Kronick,” another marijuana slang. When authorities refused to approve the name, the beer became “Censored.” Lagunitas also markets its “Undercover Investigation Shut-Down Ale,” which commemorates the temporary shut-down of the brewer in 2006 after agents witnessed people smoking marijuana in the company’s biergarten. The beer that got it in trouble in this particular trademark dispute was its “The Waldos' Special Ale,” which refers to a smoking club that, in one popular etymology, originated the mysterious association of 420 with pot smoking.

In the current case, the owner of Lagunitas decided to drop the phrase from its packaging rather than dispute the trademark.

A Fermenting Problem

Don’t think that this type of trademark dispute is down to forgetful potheads who don’t know better than to use someone else’s trademark: it’s becoming an almost daily phenomenon in microbrewing. There are now more than 3000 breweries in the US. That's less than the early 1870s when recordkeeping began, but a dramatic upsurge from the less than 90 at the industry's nadir in 1979. About 98% of breweries are small craft breweries, and they combine to offer more than 10,000 individual beers. Although they are all angling for unique names that will make their brand stand apart, they don’t always succeed.

Lagunitas has been on both sides of (non-marijuana-related) trademark disputes before. Fellow California brewer Bear Republic Brewing Company has aggressively defended its “Racer 5,” which has been listed as the best IPA in the US, against brewers putting similar-sounding beers on the market. Sixpoint Brewing in Brooklyn recently brought a lawsuit against Renegade Brewing in Denver, Colorado. Sixpoint alleged that Renegade’s newly-marketed “Ryeteous Ale” was too similar to its own “Righteous Ale.” In response to the lawsuit and in Lagunitas-like style, Renegade changed the name of its rye IPA to Redacted, otherwise maintaining the style of the can.

To be fair, though, this type of wrangling over names is not new. In 1907, Anheuser-Busch became embroiled in a fight over the right to market beer under the name “Budweiser,” against two companies that were actually brewing beer in Budweis, Germany. The US company conceded the right to market “Budweiser” in most of Europe, where it is sold as “Bud” or “Anheuser-Busch B.”

Beer Is Made of Water, Barley, Yeast, Hops, and Brand

These days, beverage attorneys advise brewers that branding is “the most important first legal step” in starting a brewery. Beer branding these days is a matter of life and death for a brewer, as the Strange Brewing Company in Colorado figured out last year. The company received a cease-and-desist letter from Strange Brew Beer and Wine Making Supplies in Marlboro, Massachusetts. In 1997, the Massachusetts company trademarked the name Strange Brew in connection with “beer” and "retail store services featuring beer and wine making supplies."

Although the Colorado company attempted to resolve the dispute by suggesting cooperative alternatives, this was deemed “offensive,” and the suit remains unresolved, with both companies' Facebook pages taken down as part of the dispute.

Microbrewers, it seems, have to be more protective of their brand than anything, even their brewing recipes, which they often share freely with each other and homebrewers.

A Changed Industry

Everyone involved in these disputes comments on how much the industry has changed since a high-profile case of trademark infringement seemed to set a precedent for the industry in 2006. In that year, Russian River Brewing Company in California and Avery Brewing Company in Colorado discovered that they were both making a beer called “Salvation.” Rather than fight for the right to use the name, the brewers got together to make a joint brew called “Collaboration not Litigation.”

Over the years, there have been a few similar cases of cooperation, but it seems the trend in the industry these days is litigation, litigation, litigation.

A couple of our hometown brewers in Denver have been at the receiving end of this unfortunate change. Strange Brewing, a feisty little brewery in an unprepossessing little industrial park, was sued by a brew shop in Massachusetts.  They're not even a brewery, but they claimed the name, and the PTO lumps them all in the same category. After a year-and-a-half-long battle that involved taking down each other's Facebook pages (Strange became "That Brewery on Zuni"), lots of legal maneuvering, and name-calling, the two parties decided to settle out of court. Strange Brewing became Strange Craft Beers.
Just a mile and a half or so away, Renegade Brewing got sued for its Ryeteous Rye IPA by Sixpoint Brewing in Brooklyn, which made a Righteous Ale. Although Renegade didn't have a good legal case, they responded with appropriate spirit, renaming their beer "Redacted," which is a pretty good replacement.

My Solution

Ideally, every dispute like this should be resolved amicably without the need for anyone to tear down their fellow beercrafters. But if they can't share a name, they should fight for it. Brewers should agree to a taste test in a neutral market, where neither of them has a presence. The winner of the taste test gets to use the name, and gets the rights to that market, which will be primed with the publicity from the taste-test showdown. 

It's a solution that can preserve the amicable spirit of competition that has helped foster the craft beer resolution. I think it's a win for everyone, except maybe the lawyers.

No, the FDA Isn't Targeting Brewers or Farmers

Over the past couple days, the Internet, and especially the conservative blogosphere is dizzy with the

story that the FDA is targeting the relationship that some brewers have with local farmers, donating their spent grain for cattle feed. This is not true, it's simply another example of Internet gossip gone wild.

Talk Is Cheap when the Story Is Good

In case you haven't figured this out by now, the Internet is like a bunch of old gossips with nothing better to do than pass on things they've heard, adding more juicy bits as they do so. And that's what happened with this story. If, for example, you read the Hit-and-Run, blog, you find out that:

FDA Moves to Stop Sharing Between Beer Makers and Farmers

OMG, I can't believe that regulation is so out of hand in this country that the FDA would target brewers like that!

Of course, if you look at the article cited by the blogger from Boing Boing, the esteemed Cory Doctorow decided to put a headline on a few quotes, with maybe a sentence of his own thrown in there:

FDA rules make it nearly impossible for beer makers to give their grain to farmers for feed

Now, at least we're beginning to see that it's not that the FDA isn't actually specifically moving to target brewers. It's just making rules about animal feed that add hardship to brewers.

And if we look at Doctorow's source, the rhetoric cools down a little to a mild fever:

New FDA rules may cut long-standing ties between beer makers, farmers

And if you look in the actual article, you can see the source of the fear. An unquoted statement by the writer of the article that the FDA's proposal would require brewers to dry and package their grain before they ship it
But there's no evidence that this is actually what the FDA is proposing.

Is the FDA Really Taking Food from the Horse's Mouth?

What evidence do we have of what the FDA is really going to require of brewers? An actual quote from the FDA says, "FDA understands that many breweries and distilleries sell spent grains … as animal food. Because those spent grains are not alcoholic beverages themselves, and they are not in a prepackaged form that prevents any direct human contact with the food, the Agency tentatively concludes that subpart C of this proposed rule would apply to them."

So . . . looking at subpart C, we find that it says:

"The Agency proposes to require that the owner, operator, or agent in charge of a facility have and implement a written food safety plan that includes as applicable:

• A hazard analysis;
• Preventive controls;
• Monitoring procedures;
• Corrective Action procedures;
• Verification procedures; and
• A recall plan."

There's nothing in the plan about having to dry the grain, unless, of course, passing wet grain creates hazards that could only be prevented by drying the grain, which, as brewers point out is not likely to be the case. And it's worth noting that at this point, this is just a tentative finding, not part of the final rule, which won't be decided until after the FDA hears all the input from relevant industries, including brewers.

Undue Hardship or Due Diligence?

The truth of the matter is that the new rule probably won't create much hardship at all for brewers. The Brewers Association would probably come up with a boilerplate set of guidelines consistent with good brewing practices, such as regularly testing spent grain, which is often recommended for QC purposes anyway. How often testing would be required would depend on the level of the threat, so, again, it likely won't be much.

If you look at the Brewer's Association statement about  the regulation, it says, " The proposed FDA rules on animal feed could lead to significantly increased costs and disruption in the handling of spent grain." But, as this blogger points out, it seems that the Brewer's Association hasn't actually done any math on the question, which means that it's definitely premature to enter freak-out mode about the proposed regulations.

And, of course, the statement forwards the absurd assumption that if brewers can't give their grain for cattle feed, it'll have to go to a landfill, when the Brewer's Association's own solid waste recommendations note that there are many options for using spent grain, including using them in baking, giving them to ethanol plants, and composting them on their own farms or other farms.

Furthermore, based on the experience in other markets, it likely won't have much effect on the economics of using spent grain for animal feed.

Actual Brewers' Experience with Regulating Spent Grain

The US is not the first country to regulate spent grain coming from breweries. In 2006, a law went into effect requiring brewers to be licensed before giving or selling spent grain to farmers. The law actually lifted the previous ban on the practice that was issued in 2001, because it had been linked to the 2001 foot and mouth outbreak which resulted in more than 2000 documented cases of the disease, resulted in the wasted slaughter of millions of animals, and cost the UK an estimated $16 billion.
Although spent grain wasn't likely the cause of the outbreak and the practice was outlawed just out of an excess of caution, this does show that there are very real harms that can come from the use of unregulated feed.

So, have British brewers been forced to dry and package their spent grain before giving it to farmers? Not at all. Have they been burdened by excessive processing costs? Not at all. In fact, if you look at this exchange on a brewer's forum, there's no question that selling grain to farmers is highly profitable for brewers. Not only that, but the eagerness of the farmers to buy the spent grain suggests that it's still an economic alternative for farmers as well.

In fact, this 2011 study of the practice suggests that the primary factor in the profitability of the practice is the shipping, which is pretty similar to considerations in the US.

I don't blame bloggers (much) for trying to sensationalize their stories. After all, a blogger's gotta eat, and many of them have revenue based on clicks and page views. Original ideas are scarce and research is hard, so it's easiest to just try to "sex up" somebody else's story.
But I would think that by now we would all be smart enough to know that's how their game is played and that the rest of us should check out the facts before we believe their overblown claims.

Rubaiyat of Beer: Part 6

And from the floor the view is clear,
Seen through the shimm'ring lens of beer
     The party where we first were labeled
Drunkard, and mistook it for a friendly jeer.

The party where we were circled round
By many warm friends, then shortly found
     Their number fewer, their company
Cooler as we fell fast toward the ground.

The first glass we all raised as one
As together we all joined in the fun.
     But pleasures like rivers, tho the ends the same
From sources and by courses different run.

Part 1
Part 2
Part 3
Part 4
Part 5

Rubaiyat of Beer: Part 5

The barman produces another cup
Undismayed he wipes and turns it up
    Then fills it with golden liquid
And dun froth, more of the hearty sup.

Why eat when you can drink?
Why work when you can think?
     And when the waves are so cool, so comforting,
Why swim when  you can sink?

Mistress barley golden hair
Will take you in her tender care
     Let yourself sink to her tan
Bosom and nevermore gasp for air.

Part 1
Part 2
Part 3
Part 4

Beer Run 2012

So the whole beer run idea was my brother's. He runs all the time, and he sold it like this, "There are tons of breweries near Pops' house. We can try some beers and burn off the alcohol by running."

Now, as far as I'm concerned, running for its own sake is like shuffling but never dealing a game. But obviously I do love my beer, so I signed up. Besides, he's not in town that much, and he and I and Pops don't get to hang out that much, so it seemed like a great opportunity.

The run took place last Saturday, supposed to start around 2pm. I get to Pops' place about a quarter till. Pops is there, hanging out with his friend Junebug, who has a half shot of whiskey left. The shower is on, and I assume that Linus is in there. It doesn't make any sense to me to take a shower before you run, but, hey, maybe he knows better than me--after all he does run all the time.

Then Pops explained: "Your brother is in the shower."

"I figgered," I said.

"He just got home. He was out drinking all night with his buddy."

Turns out they went to the Cheeky Monk and enjoyed a bunch of tasty beers the night before. So, likely no running.

Linus got out and confirmed that there would likely be no running. He looked pretty bad. He was chugging some Water Plus or something like that. Then he had to excuse himself and returned with the wisdom: "Good Times is not so good the second time."

But he looked better and pronounced that he felt better. He just needed a cup of tea and then we could go.

While he was drinking his tea, we listened to some of Junebug's stories. He was talking about his best fishing season, with over 1600 caught. His best day, apparently, was about 116, he said, with his own flies. He also told us how when he went in the service he wanted to get assigned something he could use after he got out, like an electrician or something. What'd he get? Bomb loader. Now that's a skill with a lot of private sector demand.

Junebug finished his whiskey and left, and we got out walking about 3 or so.

First Stop: Breckenridge

Breckenridge Brewery on 5th & Kalamath is a nice little brewery/BBQ. I've been in a few times, and always had fair service and good beer, though I hadn't tried the food. Linus said he needed to eat some soup, so he ordered a cup. I ordered some wings, which had a tangy smoky BBQ sauce. Very tasty, which is good because neither Linus nor Pops really embraced their commitment to eat some, so I ended up eating most of the dozen.

Linus and I ordered the Christmas Ale, but I can't remember what Pops ordered this first time. It's not one of their mainline beers. Christmas Ale was a little bland for a winter warmer, but not bad.

We were getting ready to leave when we got invited to go on the tour. Since it included a free beer, we said, what the hey, and we went along. Linus got the Vanilla Porter. Pops got the Lucky U IPA, and I got the Stranahan's Vanilla Porter. This was a super delicious beer. The normal Vanilla Porter is just okay, but the whiskey hints fill in the leading edge of the flavor, accentuate the vanilla and enrich the malts. Highly recommended.

One excellent side effect of Stranahan's increasing its output since it was purchased by that industrial liquor maker is that almost everybody in Colorado offers some variant on a whiskey barrel aged beer. Some are really good and others are just okay, but on the whole I'd say that we beer drinkers got the best of that deal.

The brewery tour was just what they most always are. Not too interesting, except for a few little tidbits I'll leave for you to discover when you go. The bottling lines were silent, as was the canning line--which was really tiny--but they were filling barrels for aging, and once they pulled off the hose and a bunch of pressure escaped, making a loud noise that startled a bunch of people.

Second Stop: Renegade

Our next stop was Renegade Brewing over between Kalamath and Santa Fe on 9th. They haven't been there very long. I remember I first stopped in just a few days after they opened. They were happy because they'd just gotten their custom-crafted tap handles (they didn't tell me what they used before then), but they only had two beers available. I tried the Ryeteous IPA at the time, which was okay, but I think they've tweaked the recipe since then and if you pick it up in the cans, it's a really tasty brew--if you like rye and you like IPAs.

First round was a Hammer and Sickle for Linus, a Radiator for Pops, and a Midnight in Bruges for me. The MiB is a pretty tasty black IPA, though it has less of the heavy coffee-and-chocolate notes you'd expect based on its color and style. It was more of a sweet caramel taste, which gave it two distinct flavor peaks: the sweet malt and the bitter hops. These kind of crest one after another, never quite harmonizing, but not interfering with one another, either.

Second round I got a HaS, Linus got a Lost Brotha, and Pops got a 5 O'Clock Blonde because he said he wanted to get something light. The HaS was a pretty good Russian imperial stout, but not as good as the Moose and Squirrel. Linus said the LB was a pretty good Belgian style dark ale.

Third Stop: Pops' House

After we left Renegade, Pops was staggering pretty bad. He didn't think he could make it any further, so we went back to his place--which is basically around the corner from Renegade: we'd already passed it and had to go back--to rest up a little bit. We hung out, talked some more, and then headed out.

It was getting pretty cold by this time. The sun had been down for an hour or more, and it had never been a particularly warm day. But I didn't really feel the chill. We walked by Lincoln Park, and looked at the projects they were tearing down to make room for more projects, apparently.

It was kind of weird, because they tore down the buildings in a way that half of each apartment was left--two rooms connected by an open hallway, separated from the next apartment by a flimsy wall and medicine cabinet--the sort of arrangement that always reminds me of Candyman. There was also a weird beeping sound coming from them, like somebody forgot to remove the battery from a smoke detector and it was just warning that its battery would soon be dead.

It's only about a mile and a half from Pops' place to Strange Brewing, but it seemed like a long way at that time of night, in the cold, past demolished buildings and then through the industrial district. We were definitely ready to be there by the time we reached it.

Fourth Stop: Strange Brewing

Strange Brewing is a little off the beaten path for a brewpub, although I imagine it gets a fair amount of Broncos traffic. I'd been there once before and enjoyed a firkin at Hops & Pie. The first round I got Paint It Black, a honey coffee stout, and I can't remember what Linus got. Pops wasn't drinking any more. PIB was just okay, and Linus didn't seem too enthused about his, either, although any beer that's worth finishing at that point in the night can't be too bad.

We sat in their warehouse space adjacent to the taproom, which they didn't have last time I was there. It was supposed to be heated by one of those little propane stand heaters, but they were out of propane, so that was that. They didn't even try to turn it on for us--they only tried to turn it on when a beer tour van rolled up. Then they set up a little electric heater, but that did about nothing, so we moved back to the taproom.

Second round was Cherry Kriek for both Linus and I, which pours out really pretty, which a tall, pink head. And actually it's a super tasty brew, too. Very tart, but easy to drink.

Overall, it was a really great day, full of wonderful conversation--most of which I can't really remember, except to say that it was remarkably free of those awkward pauses and long silences that often characterize time spent with my father and brother. Something I definitely want to repeat, though perhaps maybe on a sunny spring day when it stays light and warm much longer.

Lucky 13 Alt--The writing's on the bottle

Lagunitas is a brewery that knows the beer experience begins long before you take your first sip. It begins when you're looking at the shelf trying to decide what to buy to take home. You're looking at the dizzying array of bottles on the shelf (If you've got a liquor store like mine, there are literally hundreds of different choices--just in the bomber section!), and you're trying to figure out what feels right for the evening. You make this decision based on a variety of factors, such as what you know about a brewery or particular beer, what you're in the mood for, and what the bottle looks like.

Breweries try to influence this decision, of course, by making the most attractive bottles possible, but Lagunitas stands apart from the others by how it chooses to do this, and it's partly for the bottle that I chose the Lucky 13 for this afternoon. It's not just that it has a pretty girl on the bottle, which is always a draw for me (See this popular post on our sister blog for more information on Beer Babes). Lagunitas also does something else that I love: they pay attention to the writing on the bottle. I have often been very happy with the writing on a Lagunitas bottle. Let's take a moment to look at the writing on this bottle:

From the first day of the first mash of the first recipe in the first brewhouse in the first space to this oasis 13 years on the road; We have worked hard to walk in the footsteps of our hero brewers--The Noble Brewer of the planet's only legal Steam Beer, and Oregon's Rebe Brewer from Newport. Thirteen years down the road, we have found our own voice as brewers but our admiration for the Great Ones has not dimmed one bit. If we walked well down the hero's path ourselves, perhaps we too have been an inspiration for others. Beer is a Bronze Age business and we feel honored to have left our footprints on it's [sic] path into history at the same time leaving our flavors on your buds. Thanks for your trust over the years, and we hope you enjoy this specially brewed Hi-Gravity Auburn offering. Beer Speaks, People Mumble!

 From the repetition of "first" to the repetition of the company's slogan, this text oozes of the anxiety of influence in brewing. They are conscious that they are standing on the shoulders of giants and are attempting to pay tribute to their immediate inspiration (explicitly referring to Anchor and Rogue) as well as the long tradition of which they are a part.

This is not great writing (note the its/it's confusion for example), but it is a sincere attempt to capture the spirit that went into the beer's making, something they hope will carry over. It is attempting to enhance the act of brewing as communication, which is something they consistently try to do.

For another example, consider the label text on their Little Sumpin' Wild Ale:

"Bring me Sumpin' Wild!" His voice rang out down the double helical hallway. He was summoning the object of his desire, that Phenolic Off-Flavor producing POF gene. He was a handsome, albeit pedestrian, heterozygous diploid strain and he longed for the wild side of things--the lights, the big city, the clove esters, the subtle tropical fruit nuances . . . but he was an ordinary diploid. "Bring me the POF!" he bellowed again down the helix holding out his fresh new bud in hopeful expectation of the imminent protoplast fusion that would allow him to decarboxylate ferulate to 4-vinyl guaiacol and qualify him for pitching and subsequent ATP defilement of the luscious Little Sumpin' wort. Hope springs eternal, but who among us is as luck as all that . . ?

 All this to explain that this is their typical Little Sumpin' Sumpin' Ale fermented with Westmalle yeast, but what an explanation!

There are a lot of different approaches to writing beer bottle text, but Lagunitas' is one I admire. Sincerity and devotion to the spirit over all. No one can truly capture the taste or experience of the beer itself--the label should strive to capture something of the spirit of the brewer and the message of the beer.

Now, getting past the label to tasting the beer itself. This is a delicious beer. It pours an attractive pale red color, with little in the way of head, but for its lightness it has a surprising amount of malt flavor. Lagunitas addresses this in their virtual tasting, which is very accurate. And, of course, the hops are strong and delicious. Lagunitas is definitely in the top 5 hop-handling brewers in the country (Odell, Stone, Dogfish Head, and someone else I'm forgetting to round out the others), and they do a masterful job here. Lucky 13 Alt has a complex, bitter, piney finish that doesn't hit like a hammer, but rises like a wave and bears you up with it.

I've had the "Veronica" form of Lucky 13, but I don't remember it well. Having had it twice, I can definitely say that the "Betty" form is highly recommended, especially for hop-heads.

Beer piled on beer were all too little: Drink--and be damned!

Summer Is St. Lupulin Season

One of the things I look forward to every year is the return of St. Lupulin, Odell's summer seasonal. Named after a fictitious patron who tends the hops to draw out the delicate flavor of the essential oil contained within, St. Lupulin is crisp and refreshing, perfect for cooling down after a long day of tending your own crop.

It's a dry-hopped ale, and it's got plenty of hop flavor, but it's a delicate hoppiness. Interspersing these with a couple of different IPAs, it's easy to tell the difference. While most hoppy beers hit the tongue like a hammer, St. Lupulin rolls up your taste buds like a wave, and the light malt helps to make this a very drinkable summer beer--not quite chuggable, but close--and why would you want to, anyway?

The label is nicely designed--I didn't recognize the beer glass at first.

As you can see, it's a nice, clean pour.

If you like hops but haven't had the chance to enjoy this delicate summer brew, I highly recommend it. And if you're the kind of person who thinks he doesn't like hops, well, this is one that might just change your mind.