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Discussion in 'Beer News' started by Nutwood, May 21, 2013.
Blind Faith uses a very similar color scheme. Just sayin.
The bulbous end is radically different in shape.
I'm sorry, but no other Magic Hat brand looks anything like the West Sixth branding. As you can see here, Magic Hat's beers all have a common element of being whimsical, with frequent use of non-linear shapes and lines, a great deal of visual activity and abstraction on their logos/labels. The logo in question for West Sixth, on the other hand, is pretty straightforward and simplistic, with almost no use of highly stylized elements. In fact, that special font they use for their "6" is about as stylized as they get, and there is zero use of abstraction and non-linear shapes.
Irrelevant. Blind Faith is not the trademark being protected here.
Throughout this squabble, everytime I see the West Sixth logo I think it's a Magic Hat beer. Just sayin'
FFS. What the logo looks like upside down, rotated, viewed through a mirror, or altered in any way that makes it different from West Sixth's trademark is completely irrelevant. West Sixth's trademark doesn't involve *any* use of their logo in an inverted position. To suggest that a competitor's logo, when viewed out-of-standard, infringes on your own logo is absurd.
Not everyone is a "supragenius". Said in best Wil E Coyote voice.
Maybe some of you aren't following this close enough. West Sixth went above and beyond in their negotiations and agreed to three of the major points that Magic Hat wanted changed. MH then waited three months to respond - by suing. Bullying. Even if you believe that their logos are too similar to tell apart (which I don't), you have to see that West Sixth was willing to change enough about their logo to change your mind about them being too similar. But, of course, Magic Hat simply took the bully tactic that they have employed before.
West Sixth's Statement from yesterday:
Wow, thank you all for all the support yesterday. You forced Magic Hat to respond! Unfortunately, they won't talk to us directly, so we have to use Facebook to share what we think with them. Please like and share the info below:
Dear Cerveceria Costa Rica (owners of the Magic Hat Brand),
We saw that you finally decided to hire a PR person to reply to our petition from yesterday. I suppose after more than 10,000 people signed it, you couldn’t ignore it any more.
Si...nce you decided to publish our letters (which I hope everyone takes the time to read, they’re hilarious), we also want to make sure everyone can see the full text of the bogus lawsuit. As you can see there are some crazy claims in it, and some that even look like it might have been copied and pasted from other lawsuits – what’s that craziness about us moving into South Carolina?
We thought that since you won’t return any of our personal phone calls or emails, the best way to communicate with you must be over Facebook. So, here goes:
To address your points directly:
You claim that you worked for months in good faith to negotiate with us. Actually, in our letters, which you’ve published, anyone can see that we’ve waited on a reply from you from our last letter for nearly 3 months. In that letter, we made several concessions in the last offer, including to keep the words “West Sixth Brewing” near our logo in any further designs. But instead of responding with a call, or a letter, you responded with a lawsuit. That’s not negotiating, that’s bullying.
You said that “talks between the two breweries started in September of 2012 after marketplace concerns surfaced by a Kentucky wholesaler who refused to carry West Sixth Brewing because he felt it too closely resembled Magic Hat.” Unfortunately, that isn’t true at all. We have two distributors who distribute both us and Magic Hat without any sort of confusion. We’re sorry that this is what you were told. What actually happened between us and your distributor is this: After we had advanced negotiations to sign with your distributor they were told by another brand they carry that they should not distribute our beer.
All that said, as we indicated in previous notes, we’d rather solve this problem than keep it going — after all we’ve got good beer to make. So, here’s what we propose: In your public response, you indicated you would be happy with a settlement that includes the 4 clauses you outlined. We pretty much agreed in our last letter to do items 2-4, which were:
2) Including our name around our logo in future items
3) Phasing out any merchandise that doesn’t include the words “West Sixth Brewing” in close proximity to our logo
4) Amend our current federal trademark to include something different from the compass
What we had a concern with was number 1, replacing our compass with a different symbol in exchange for agreeing that we would never use the numeral “6”. We just don’t think your trademark rights in the numeral “9” allow you to keep out any competitor who uses the numeral “6”. Our address is 501 West Sixth Street – hence our name. We’re not trying to use any of your designs. Heck, we already distribute a lot more beer than you do in Kentucky.
So, let us get this straight. When you say you’re presenting “the truth”, the “truth” is that you are suing us in federal court because of the compass in our logo?
If that’s what it takes to resolve this, why didn’t you say that in response to our last letter, rather than waiting 3 months and then filing a lawsuit?
While we have the law on our side, we’re reasonable people, and we don’t want to spend all our money on court – we’re brewers not fighters.
We’re willing to phase out the current design of our compass and replace it with something that is more clearly a compass and not a star. Here are a couple quick options our designed worked up for you to choose from.
Will you publically agree to drop the lawsuit and trademark protest if we select one of these as our new trademark? We’ll let you pick the one you like best. You can email us directly here, or you can just post another update to your Facebook page, either one works.
So, what do you say, let’s bury the hatchet and down a beer together?
We’d greatly appreciate a response as quick as yesterday’s this time – no 3 month wait this time, please.
Wherever you sit this is pretty entertaining reading.
Part of my opinion is that I don't think it should take 3+ months of "negotiations" without an agreement on a logo redesign. That sounds a lot like stalling to me. Magic Hat could have [and in my honest opinion SHOULD have] led with a lawsuit right from the start, as is often done in copyright/trademark disputes. Instead, MH decided to be amiable and privately negotiate their legitimate concerns and here's what they get for playing nice.
Keep in mind too, it was distributers who brought the potential issue to MH's attention, so clearly someone besides just MH thought there was a similarity in the logos.
It was Magic Hat that caused the delay. West 6th responded 3 months ago and MH never replied to it.
Also, leading with a lawsuit is jackassery of the highest order, you start with a cease and desist or, even better, a phone call that doesnt involve lawyers.
Whats with that new Magic Hat beer in your avatar?
/Things people would never say
Someone within the Magic Hat organization is going to ultimately kill all profits. Besides their beer being pretty average at best now everyone hates them because of this PR nightmare...
I have to wonder if people (read as: those defending Magic Hat) are actually reading the exchange between the lawyers. Because if you look back at the dates of the letters between the two companies, the longer delays are--in every situation--on the part of Magic Hat. Just look at the dates of these letters:
Magic Hat initial letter - 9/26
West Sixth response - 10/26
Magic Hat response - 12/26
West Sixth response - 1/11
Magic Hat response - 2/5
West Sixth response - 2/27
In other words, West Sixth took one month, two weeks, and three weeks (respectively) to respond. Magic Hat, by contrast, took two months and one month (respectively) to respond, and then another three months before blindsiding West Sixth with a lawsuit after West Sixth refused to budge on a fairly ridiculous expectation from Magic Hat (that West Sixth cease using "6" in their logos).
And if you read West Sixth's updated response, they directly dispute the idea that a distributor brought the issue to Magic Hat. In fact, they say that the distributor came to them noting that another brand that they distribute (hmmmm, who could that be...) was saying that they shouldn't distribute West Sixth beer any more.
This seems like a pretty clear case of Magic Hat demanding overbroad protection for their trademark, and they still won't concede to West Sixth's very reasonable counterproposal. Sounds to me like Magic Hat never had any intention of "good faith" negotiations, because they weren't going to stop short of forcing West Sixth to cease using their current logo.
They're already hated in Washington State, that they are in our market now, sucks. Screw them.
To the first point Magic Hat contacted them in September. It was only ~3 months from today or sometime in February that they stopped "negotiating" with West 6th. That would mean Magic Hat and West 6th were "negotiating" for ~5 months. That's ridiculous and it reeks of stalling tactics.
To your second point, you lead with a lawsuit so that the other party doesn't have a chance to stall, prepare, and create this sort of media circus [boy ]. It's not jackassery, it's just good business even if you don't like it. A company can't ignore a potential copyright/trademark infringement, so Magic Hat was going to look like a big evil company picking on the little guy no matter what. I think Magic Hat made the wrong move by trying to play nice. They should have hit harder right from the start and got it over with quickly. I doubt they will make that mistake again.
Like a lot of BAs on this thread, I agree the 6 and the 9 are very similar. Even the star used on both labels is similar. Did West Sixth intentionally design their IPA label to mimic Magic Hat? I haven't read any where that this is true.
I also disagree with the notion that things like fonts and colors unequivocally distinguish trademarks. That's insane. For starters, fonts are not recognized as artistic works according to the 1976 Copyright Act which means they cannot be protected. BUT, if that font is then used as part of a logo, then that typeface does receive protection under copyright law because the whole can be considered an artistic work. Good examples are Walt Disney and Coca-Cola - maybe IBM as well.
So how will the courts interpret this? I don't think they'll throw the case out because the two logos are different when shown right-side-up - that's irrelevant. The accusation is that a large portion of the Magic Hat #9 logo was used for a similar competing product (i.e. beer) in the same markets that Magic Hat conducts its day-to-day business. That sounds like dilution. It doesn't matter whether the two are facing the same direction. If the court believes the 6 and the 9 are indeed the same with the only change being its orientation and color, a case can be made that West Sixth directly infringed Magic Hat's rights.
It all depends on the exact wording in the lawsuit filed with the courts. Trademark Dilution is probably the strongest argument, but even that requires 8 hurdles to be overcome (duration/extent of use, duration/extent advertising, geographic area, distinctiveness, degree of recognition, channels of trade, third party use of mark, was mark federally registered). I'll try to get my hands on the official suit and then we can have a concrete discussion about how "frivolous" this suit is.
This type of lawsuit infuriates me. It is completely reliant on idiocy. The thought that people are too fucking stupid to actually look at something and make an informed decision whether or not to purchase it. Copyright lawyers must spend 80% of their days banging there heads against hard objects at the absurdity of it all.
And I'm not defending Magic Hat, nor am I siding with West Sixth. I haven't purchased a Magic Hat beer in a long time and I've never had West Sixth. I'm simply trying to objectively analyze this whole ordeal. Notice I never said either brewery was right. Ultimately, the court will decide who is right based on their interpretaton of the law.
Yea, common sense and personal responsibility (oh, i didn't read the big "West Sixth Brewing" on the label when I accidentally purchased it instead of my Magic Hat #9) are completely gone. Sad, but true.
This, my friend, is awesome.
I think I read that on the bottom of a West 6th can...
Sorry, but this is a ridiculous take. There is another big local brewer, Allltech, that doesn't like West Sixth dominating their home turf and they pushed their distributor to not sell West Sixth. They are also the ones rumored to have contacted MH about this. This is a turf war that had Magic Hat brought into it to push Alltech's agenda. And, Magic Hat has a history of these bully tactics, so they were up to the challenge.
West Sixth has been more than accomodating. Much more than I would have been. This was not a publicity stunt in any way. This has been kept under wraps and they were trying to resolve this amicably. MH shut the negotiations down and sued. Those are the facts. West Sixth smartly took this public because it honestly is their only move.
I am not taking sides here but this info certainly changes the whole tone ... FWIW making all of this public was a very bad choice on West Sixth Brewing's part as Magic Hat's lawyers will use much of what is out there now in public opinion against them. You are basically asking the public to decide and it won't take but a handful to say the logos are similar / confusing for West Sixth to lose the case.
Why breweries feel a need to make this stuff public is beyond me.
Just my two cents ...
Couldn't disagree more. West 6th really doesn't have much choice. There is not way they can afford the lawsuit and MH knows that. It was MH that was dragging their feet. As far as logo styles being similar, why doesn't Magic Hat sue Boulevard over Love Child #3? Why are they using a mountain dew like logo for one of their beers?
MH is a big brewer using it's lawyers to try to get West 6th to roll over. West 6th agreed to 3 of the 4 points MH wanted. I think it is great they made it public.
I will continue to not drink Magic Hat based on the same reason I haven't been...it's crap beer. Easiest...boycott...ever.
I thought court filings were always public?
Yes, indeed they are ... but going to bloggers, opening it up to public forms makes it a different beast all together IMO. Just more info for the lawyers to use.
It is posted in the thread.
Did you see the timeline?
West 6th always responded in a timely manner and then Magic Hat responded much slower each time.
And court cases arent swift things, they take forever, so there is no need for "stalling" tactics. If the goal was a media circus, that could have been done if a lawsuit was filed 6 months ago. I think Magic Hat thought West 6th would entirely cave and when they wouldnt give up the numeral six, Magic Hat filed. Clearly MH wasnt wanting a negotiation, they wanted an entire capitulation.
Trademark not copyright.
Incredibly different things, but otherwise I agree with you.
If true, who is Alltech going to bring in to sue Country Boy.
Anyone else using a pickup truck in their logo?
I rarely get down to Lexington, is West Sixth IPA taking that many tap handles from Kentucky Ale? I have to imagine its that, as otherwise their beers dont really overlap stylistically, so I cant imagine it would be package sales upsetting them.
What other choice was there other than go public? Roll over for the big corporate lawyers? Go to court and let their money put you out of business? I would say that MH has put out more info than West 6th by publishing all the correspondence thus showing them to be the ones to be the assholes.
While fonts and colors don't "unequivocally" distinguish trademarks, they are indeed distinguishing elements. So no, a company cannot take some other company's logo and simply change the color palette and/or font to be free and clear of any trademark violation. But when we're talking about two logos that only have SIMILAR looking elements (in this case, the star/compass and the 6/9), the context in which those elements are placed (i.e., colors, fonts, styles, etc) absolutely matters.
This is not a case of West Sixth taking the Magic Hat "9" and star and simply changing the color and flipping it. This is a different numeral and a different star that, even when context is completely removed, still look different (albeit similar). And it's not even the whole logo, it's one part of one logo looking somewhat similar to one part of another logo.
I agree that the actual wording of the lawsuit matters, but I fail to see how Trademark Dilution is in play at all here. Doesn't it apply to "famous" marks--I'm not sure that Magic Hat's #9 label qualifies, which is why they will have to demonstrate Likelihood of Confusion. I also thought that dilution was intended to prevent companies from using said "famous" marks in non-competing products. The fact that this is a dispute between two beer companies makes me skeptical that Dilution is the right claim. The fact that Magic Hat didn't register one of the two sticking points (the star) with their original filing also hurts.
To show the idiocy of the other side?
Really, "inverted nine mark", they think people are going to buy that bullshit?
A six is a six, a six is not an inverted nine.
Perhaps, but sometimes the power of public opinion can help when you have shallower pockets.
I think the fact that they are the only 2 that bottle or can their product might have something to do with it.
Check out Everybody's Brewing from Washington State and their Country Boy IPA.
I presumed the same lawyer would handle either or, I'd never heard of a trademark lawyer until this topic. The suicide rate must be astounding.
Tractor v Pickup Truck, I think both are safe.
Then again if a six is a nine....