Cerveceria Costa Rica (Magic Hat) Suing West Sixth Brewing

West Sixth refused to compromise on any logo change. This forced magic hat to sue. West Sixth i s"bullying" by posting Magic Hats logos crossed out online, and by trying to publicly bash Magic Hat on social media. This could have been a private business negotiation, West Sixth by lack of willingness to change their label in any way, made it a legal issue. Furthermore, they went online and purposely bashed Magic Hat, insted of resolving it in the court. "Bullying" was the other posters words not mine. But still I would say nothing Magic Hat has done is remotely bullying. They are trying to protect there brand in the only way they can. West Sixth refused to do it the easy way, so they had to do it the hard way.

Also making this public was a huge mistake. When I first heard about this case, I too jumped to the conclusion that Magic Hat was "bullying them". Without all of the postings by West Sixth and reading the letters back and forth which likely would not have been made public if everything else was not, there is no way I would have sided with Magic Hat.

 

I went thru the differences in the two back in an earlier page. They are even more different than I thought, and I called them radically different, but within the same font family. I didnt catch how much tighter the six is.

 

This is a great read for anyone who is genuinely interested issue. It's very objective and in no way "sides" with West Sixth. But it does sort of touch on the fact that Magic Hat probably made a mistake by pursuing this in the first place.

 

This is not true. They made 3 different offers, and MH never accepted any of the offers.

They may have refused to offer a compromise that was acceptable to MH, but they did make compromise offers.

Even the 3rd offer, which backed off some points from the 2nd offer, was still a compromise offer.

 

Il agree to disagree, not interested in arguing about how similar the logos are. You guys are digging way to deep. The fact is that myself and many others thought that the West Sixth can was Magic Hat #6 or some sort of Magic Hat variety the first time we saw it. The fact that you and some other people don't find the labels similar does change the fact that many other people do. Even if only 30% of people were confused by the label, that is enough to warrant a label change. The star itself would not be a sticking point, but combine it with the fact that the rest of the labels look very similar. You can go through all the details and dimensions of the differences you want, but the labels are similar enough to confuse people.

 

You do have to protect trademarks, but only against people who are actually violating it.

Yes, not fighting against West 6th might have prevented them from attacking 7s or 4s in circles in the future, but wouldnt have hurt them as far as 9s go.

 

Yes, but after all of that they said that it was too costly and they were not going to change the cans at all. The stopped the negotiations right there.

 

This is important for me to understand -- why did you think that? Has Magic Hat ever had a logo that wasnt hippy and swirly and psychedelic? Why would they start now? Did you think they were going to do a number series of beers, but just started with nine for some reason? Does 312 confuse you too? How about Racer 5?

Okay, all but those last two questions are serious questions. Actually, the Racer 5 one is too, but the 312 one isnt, so I dont expect you to answer it.

 

That isnt what you said. You said West Sixth refused to compromise. That isnt true, Magic Hat had a couple of offers to accept and never did accept them. Negotiations breaking down, for whatever reason, isnt a sign of refusing to compromise.

And even their last letter offered 3 changes. So saying they stopped negotiations isnt true.

 

Oh so they compromised? That's good to hear. All of this is settled then. If

 

They OFFERED a compromise. Magic Hat refused it.

Magic Hat also offered a compromise that West Sixth refused.

 

Magic Hat then counter offered, the next step would be for West Sixth to either accept that offer or come back with a new offer of their own. Instead they said they were no longer willing to change the label in any way. This is the exact definition of REFUSING TO COMPROMISE.

 

No, that just means you are not very observant. And judging by your posts in this thread, not very smart either.

Seriously, people like you are the reason we need stickers on hair dryers warning them not to use them in the bathtub.

 

It's hard to feel like you're looking at this objectively, although I have no idea of your personal motivations or preconceptions, so my comment is not intended to say that you are, in fact, biased.

Because there is a difference between "bullying" and "pressuring". Bullying implies that the bully has an advantage over the person they are bullying. Traditionally, this is a larger/stronger/older kid picking on a smaller/weaker/younger kid. Sometimes it's a group of kids picking on one kid. Sometimes it's a company with a lot more resources at it's disposal picking on a smaller company. So while I agree that making this exchange public is pressuring Magic Hat, I don't think it makes any sense to classify it as "bullying". They have no upper-hand, and if what you suggest is true, they are actually not even pressuring Magic Hat, because everyone can now see how wrong they are by releasing everything to the public. Obviously, I disagree that they are harming themselves to the degree that you suggest, but it's a bit of a misnomer to say they are "bullying" Magic Hat.

But more to the point, the problem--imho--started when Magic Hat decided to pursue this in ANY WAY. Whether by lawsuit, letter to West Sixth, phone call, whatever. The act of contesting West Sixth's right to use their logo on the basis of it infringing on Magic Hat's logo is where the first problem occurred. My point is that West Sixth should not have had to change their logo. At all. Because the entire dispute is, by my view, an overreach of trademark protection by Magic Hat's part. The second Magic Hat reached out to West Sixth with the expectation that they change their logo was the second this could not be resolved the "easy way", because the only outcome they were okay with involved some kind of change/concession on West Sixth's part. Otherwise, they wouldn't have contacted them at all.

The reason it's bullying is because they are expecting a brewery that they have to know doesn't have deep pockets (based on their time in the industry and distribution footprint) to undergo the expense of a re-branding to defend a trademark from confusion that essentially doesn't exist. At this point, I'm sort of curious for this to go to court, because I want to see how a trademark judge would rule on Magic Hat's claim that the West Sixth mark is infringing on their brand.

 

Do the girlfriend, wife, or mom test. (if they are not super craft savvy that is.)
Us as extremely savvy consumers of craft beer aren't the best test to see if two similar names/designs are confusing.

In the Oskar Blues vs. Gordon Biersch "Gordon" case, if I told my mom to grab me a sixer of Gordon down at the beer shop, there is a very good chance she'd come back with Gordon Biersch rather than the desired OB Gordon or vice versa.

If my girlfriend were at the beer shop and saw these two cans next to each other, she would likely think they are different beers from the same brand.

 

They never said that. In their last communication, they offered 3 changes.

And you are wrong on definition. Sometimes, when the two parties are too far apart, negotiations just get cancelled. That is not a sign of refusing to compromise on either part. More of an "agree to disagree".

Here are the letters and compromises offered:

Magic Hat #1: Demands only. ZERO compromises offered.
West Sixth #1: Offer to remove or change star when current supply is depleted.
Magic Hat #2: Refuses offer, makes counter-offer with 5 points:
1. W6 removes star within 30 days.
2. W6 will stop using 6 logo alone without words within 30 days.
3. W6 will use 6 logo with words WEST SIXTH BREWING after 30 days.
4. W6 will abandon trademark application
5. MH will not oppose new trademark application if it doesnt include star
West Sixth #2: Refuses offer, makes counter-offer with 6 points:
1. W6 will remove star or change its design to make it clear its a compass and not a starburst.
2. W6 will continue to use WEST SIXTH BREWING in conjunction with 6 logo.
3. W6 will replace old logo with new as inventory is exhausted (not 30 days).
4. W6 will amend or refile trademark application with new design.
5. Magic Hat agrees to not oppose new trademark application
6. W6 does not agree to never use the 6 alone without words in the future.
Magic Hat #3: Is mostly fine with first 4 points, but objects to 5 and 6 (#5 for legitimately good reasons).
West Sixth #3: West Sixth pulls #1 off the table as too expensive. Changes #5 to MH not opposing application including words WEST SIXTH BREWING.

Every single communication from West Sixth included a compromise offer. EVERY SINGLE ONE. At no time did they not make a compromise offer.

 

There is a difference in initially thinking, casually, that a can you hadn't seen before resembled another brand and could be a new offering from that brand and actually confusing one brand for another. This is the important distinction that a lot of people seeing similarities (that I agree exist) between the two cans is missing.

The legal standard isn't "oh, those two cans have some similarities", or "hmm, I wonder if Magic Hat makes this beer", it's: will consumers be confused enough to think they are purchasing a product of Magic Hat's when they are actually purchasing West Sixth's, and in a target market (craft beer) where the end-consumer is likely to care enough about what they are buying to look at the label, I don't buy that there is any genuine risk of confusion. Maybe if the product in question was milk, or eggs, or some other commodity that already has little differentiation between the actual product, the issue of confusion would be more in play. And to clarify, I'm not talking about BAs, who are admittedly meticulous about their beer purchases. I'm talking about your average craft beer consumer, who cares enough about their beer to stay away from the BMCs, but likely isn't as hardcore as your typical BA.

You say that I'm digging too deep, but digging deep is exactly what is required in a trademark dispute. The test for trademark infringement isn't looking for casual resemblance between two brands. It's actually a multifaceted test for which consumer confusion is only one aspect.

 

And this one too:

 

I mentioned it earlier in this thread.

I polled a bunch of people Tuesday night. Most are craft beer consumers as you say, but not typical BAs. None were confused. The only person who thought they could be confused was a teetotaler.

The words "WEST SIXTH" above the logo is the big tipoff. Thats why, even in their last offer (which some are saying isnt a compromise offer for some weird reason), they talked about transitioning everything to using the words.

The big change (tee shirts and hats are easy) would be tap handles. But Im guessing they were planning for all new tap handles to have the West Sixth words on them.