Cerveceria Costa Rica (Magic Hat) Suing West Sixth Brewing

You don't post on VolNation, do you?

 

Couple things and then I'll have said my piece:

So when Mr. Ray sued Disney/Pixar over Finding Nemo's manta ray character, was he bullying? Or is it only when a larger business goes after a smaller business? Telling other people to fix their screw-ups isn't bullying, in my estimation. Nor is protecting intellectual property, even if the 'theft' is unintentional. Is it because we're so used to plagarism on the internet that it seems like everything should just be free? And, furthermore, if the mistake is unintentional, then why is it so hard to cop to the fact?

The 1-year aspect - I should used the term slanted, but it's a fact that makes a specific connection of the David v. Goliath angle. Alternately, if I used the phrase: "The 19 year old brewery is seeking to...", I'm intending to draw you to the conclusion that they're in the right by they fact they're established.

As for the second part, I'm under no impression that product redesign isn't costly. In fact, in my first comment, I mention that West 6th could be looking to ramp up sales to pay off the redesign, and to do so, they've started this online battle. Furthermore, it's pretty clear to me, from the timeline, that West 6th wasn't initially going to have any problem with cost of the redesign. (They might have been able to push the cost back on the design company for screwing up, and maybe they changed their minds when they couldn't obtain the necessary leverage.)

Finally, if the issue here is the likelihood of confusion, then when people who are well-informed or work in the industry can see how the marks would cause issues, then that is positive evidence which the 'injured' party can use to make their point. This is where public perception actually matters, because you're trying to prove that the public can be deceived.

 

I'm not sure what partial quotation you're referring to, as while I naturally will edit a quotation to present the relevant language as concisely as possible I have never failed to provide ellipses, brackets, etc to indicate how the text was edited, and I've never taken anything out of context or tried to be in any way misleading.

Anyway, the point is that you're wrong when you say that you "maintain that the very act of demanding West Sixth change their mark is overreaching and a thinly-veiled bullying tactic." Magic Hat never demanded this concession, they simply accepted it when West Sixth offered it in that first letter you quoted. Now, you may believe that West Sixth was foolish to offer that concession without first establishing how expensive it would be to implement, but once they offered it I fail to see how it's anything but totally unfair to accuse Magic Hat of "bullying" for agreeing to West Sixth's idea.

Like I've said all along, reasonable people can disagree about the merits of Magic Hat's initial complaint, and I can see how those who disagree with it might interpret it as bullying. Fair enough.

However, once West Sixth entered into negotiations by asking to keep the 6 (a request that Magic Hat, it should be noted, accepted) but agreeing to change the star (an offer that Magic Hat also accepted), it was up to West Sixth to live up to their own voluntary suggestions. Only once they backtracked to Magic Hat resort to a lawsuit.

 

I don't know the details of the Mr. Ray vs. Disney case. As in, I hadn't heard about it before this moment, so I can't comment honestly. I will agree that the "little" guy can be guilty of bullying the big guy. It's harder, because bullying implies that the bully has resources at his disposal that the little guy doesn't. Usually, it's size/age/muscle/etc. In this case, it's money. But I'm sure there are instances where a little guy can bully the big guy, especially in a world where brand identity is such a delicate thing--a little guy with damning information can bully a big guy with the threat of bad publicity.

The 1-year aspect wasn't meant to draw any David/Goliath angle. Other than to point out that Magic Hat has deeper pockets than West Sixth. I realize this can impart connotations of feeling sorry for the little guy, but it's also an important fact that one of the two parties has much greater resources available to it than the other.

But ultimately, my point here is that West Sixth didn't "screw up". The expectation that they shouldn't have approved the logo that they use because it might cause confusion with Magic Hat's is beyond what should be considered reasonable research and prevention of potential trademark infringement. The only mistake they made, in my opinion, was in conceding to some of Magic Hat's demands. I still think they would have won this case had it gone to court. Or if it goes to court. It's harder to tell now because I don't know how this public battle will influence the proceedings. Put yourself in West Sixth's shoes for a minute--they are being made to incur costs and risk for something that isn't an infringement. Admitting they are wrong might be the "easiest" way to go about it, but there's just as much to be said for defending the uniqueness of their own mark against onslaught from a company seeking to make them change it for a mark that is not really similar (outside of a couple of elements). These two logos just don't look similar, and within the context of Magic Hat's other logos, it's even more obvious that they come from two different stylistic approaches.



All that being said, I appreciate the rational back and forth. We don't have to agree, but the fact that we can disagree rationally is refreshing.

 

Not true. Magic Hat said they wont let them keep the six. That was what caused West Sixth to back off.

West Sixth refused to give up the right to use the six without brewery name nearby. Magic hat refused to accept that.

 

One thing we can all agree on is rlcoffey isn't a lawyer! But he is a homer!

 

Just saw this posted, sorry if its been mentioned already: http://www.kegworks.com/blog/2013/05/23/hey-magic-hat-west-sixth-heres-an-idea/

 

Not true. Magic Hat agreed to let them keep the six with the brewery name, and also agreed to let them keep using existing materials without the brewery name provided they were only "used in the brewery or taproom or in close proximity to the WEST SIXTH BREWING mark." How is that unfair?

As far as your claim that "West Sixth refused to give up the right to use the six without the brewery name nearby. Magic Hat refused to accept that," here's what Magic Hat said: "you state that West Sixth cannot now agree that it will not promote a 6 logo without the words WEST SIXTH BREWING in the future. Accordingly, Magic Hat cannot now agree that it will not object to such use by West Sixth in the future."

West Sixth's reply to this letter basically agrees on this front, stating "West Sixth Brewing remains willing to phase out use of the 6 Circle Logo with the compass design used by itself."

Both sides seemed close to an agreement about the 6, but it was West Sixth that radically changed course by reversing their earlier offer to change the star.

 

Would be a better statement coming from a non Vermonter.

 

The first is true. The second also is, but not for West 6th.

Ive had it a few times. From Lexington, Im a bigger fan of Country Boy.

 

That is true, but they also said they wouldnt commit to not using it again in the future, if I read it correctly.

 

That sounds like what I said.

Magic Hat refused to guarantee they they could use it in the future. I dont have a problem with Magic Hat saying that, but Im not going to deny that they said it.

West Sixth asked for the guarantee going forward, that Magic Hat would accept them using a 6. They refused. Maybe its a silly thing to ask for, but thats a part of negotiation. Ive seen all kinds of silly things requested in negotiations. I made a few when I bought my house (it led to me getting a few hundred extra dollars throw in to cover closing costs).

 

True, and Magic Hat had already made clear that if that happened, they would object. I quoted that in my last post.

As far as the 6 with or without text is concerned, I think continued negotiations would have wound up granting West Sixth the right to keep using the 6 without text in their brewery. Magic Hat had already agreed to let them "phase out" existing merchandise with this problematic design, and since tap handles and such can last for years it is clear that they didn't have a serious problem with it within a non-confusing context like on-premise use.

The real break-down in negotiations was clearly West Sixth's about-face on the star. Everything else was undergoing a steady back-and-forth refinement toward compromise, but when it came to that detail they suddenly announced that they were no longer willing to follow through on their own concession.

 

Just a couple points of clarification:

The only reason I updated your quote with the full quote is because you seemed to be making the argument that West Sixth initially proposed removing the star, when in fact, they proposed removing or changing it. I just wanted to make sure it was clear that West Sixth didn't immediately agree to remove it.

As far as Magic Hat demanding that West Sixth change their mark, of course that's what they were doing. It was West Sixth that offered to remove/change the compass star, but the initial letter from Magic Hat was *because* they felt that West Sixth's logo was infringing on theirs and therefore needed to be changed. So no, agreeing to West Sixth's idea wasn't bullying, the very fact they were arguing that the two marks were similar is what I'm arguing was bullying.

I agree that West Sixth's backtracking is what ultimately brought on the lawsuit, and they've now muddied their own waters by adding their own sort of missteps into the stew along with Magic Hat's wrong (imo) initial request/claim.

 

Makes sense to me. Whether deleting the star entirely or replacing it with a redesigned one, in either case the offensive element would be effectively removed. Magic Hat may well have been overreaching to demand any changes in the first place, but once West Sixth offered to amend the star it was on them to follow through.

I think we've finally come to a point of almost total agreement - a rare thing in an internet argument! It's been a pleasure engaging in a civil debate.

Cheers!

 

Where have I seen these pics before?

 

this is legitimately the best back and forth i've seen on this site. someone should lock this thread to show how it's done.

 

By this logic could I start a company called Coors2 and not risk the same result?

 

I hate chiming in on threads like this because I have no true background, but you can't tell me you can't see some super cool college type kids walking into a beer store, seeing that 6 and being like no way dude, magic hat's number 6, i heard this is way better! Sweet. We're not talking the people who frequent BA but your casual "Crafty" beer drinker.

Second, it is common in the beer to distinguish between different beers in a brand numerically. Especially, those darn Belgians.